Common use of Role of Agent Clause in Contracts

Role of Agent. Each Lender and Borrower agree that, in paying any drawing under a Letter of Credit, Agent shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of Agent, any Agent-Related Person nor any of the respective correspondents, participants or assignees of Agent shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Letter of Credit Application. Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude Borrower's pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of Agent, any Agent-Related Person, nor any of the respective correspondents, participants or assignees of Agent, shall be liable or responsible for any of the matters described in clauses (i) through (v) of Section 2.03(e); provided, however, that anything in such clauses to the contrary notwithstanding, Borrower may have a claim against Agent, and Agent may be liable to Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by Borrower which Borrower proves were caused by Agent's willful misconduct or gross negligence or Agent's willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of such Letter of Credit. In furtherance and not in limitation of the foregoing, Agent may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and Agent shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.

Role of Agent. Each Lender and Borrower agree that, in paying any drawing under a Letter of Credit, Agent shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of Agent, any Agent-Related Person nor any of the respective correspondents, participants or assignees of Agent shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Letter of Credit Application. Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude Borrower's ’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of Agent, any Agent-Related Person, nor any of the respective correspondents, participants or assignees of Agent, shall be liable or responsible for any of the matters described in clauses (i) through (v) of Section 2.03(e); provided, however, that anything in such clauses to the contrary notwithstanding, Borrower may have a claim against Agent, and Agent may be liable to Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by Borrower which Borrower proves were caused by Agent's ’s willful misconduct or gross negligence or Agent's ’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of such Letter of Credit. In furtherance and not in limitation of the foregoing, Agent may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and Agent shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.

Role of Agent. Each Lender (i) The Agent is registered as a broker-dealer with the U.S. Securities and Borrower agree thatExchange Commission and the Financial Industry Regulatory Authority, is acting hereunder for and on behalf of Dealer solely in paying its capacity as agent for Dealer pursuant to instructions from Dealer, and is not and will not be acting as Counterparty’s agent, broker, advisor or fiduciary in any drawing respect under a Letter or in connection with the Transaction. (ii) In addition to acting as Dealer’s agent in executing the Transaction, the Agent is authorized from time to time to give written payment and/or delivery instructions to Counterparty directing it to make its payments and/or deliveries under the Transaction to an account of Creditthe Agent for remittance to Dealer (or its designee), and for that purpose any such payment or delivery by Counterparty to the Agent shall not have be treated as a payment or delivery to Dealer. (iii) Except as otherwise provided herein, any responsibility to obtain and all notices, demands, or communications of any document (other than any sight draft, certificates and documents expressly required kind transmitted in writing by either Dealer or Counterparty under or in connection with the Letter of Credit) or to ascertain or inquire as Transaction will be transmitted exclusively by such party to the validity other party through the Agent at the following address: Xxxxx Fargo Securities, LLC 000 Xxxxx Xxxxxxx Xxxxxx, 0xx Xxxxx Xxxxxxxxx, XX 00000-0000 Facsimile No.: (000) 000-0000 Telephone No.: (000) 000-0000 Attention: Equity Derivatives (iv) The Agent shall have no responsibility or accuracy liability to Dealer or Counterparty for or arising from (A) any failure by either Dealer or Counterparty to perform any of their respective obligations under or in connection with the Transaction, (B) the collection or enforcement of any such document obligations, or (C) the authority exercise of the Person executing or delivering any such document. None of Agent, any Agent-Related Person nor any of the respective correspondentsrights and remedies of either Dealer or Counterparty under or in connection with the Transaction. Each of Dealer and Counterparty agrees to proceed solely against the other to collect or enforce any such obligations, participants or assignees of and the Agent shall be liable to any Lender have no liability in respect of the Transaction except for (i) any action taken or omitted in connection herewith at the request or with the approval of Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of its gross negligence or willful misconduct; or (iii) misconduct in performing its duties as the due execution, effectiveness, validity or enforceability agent of any document or instrument related to any Letter of Credit or Letter of Credit Application. Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude Borrower's pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of Agent, any Agent-Related Person, nor any of the respective correspondents, participants or assignees of Agent, shall be liable or responsible for any of the matters described in clauses (i) through Dealer. (v) Upon written request, the Agent will furnish to Dealer and Counterparty the date and time of Section 2.03(e); provided, however, that anything in such clauses the execution of the Transaction and a statement as to the contrary notwithstanding, Borrower may have a claim against Agent, source and Agent may be liable to Borrower, to the extent, but only to the extent, amount of any direct, as opposed remuneration received or to consequential or exemplary, damages suffered by Borrower which Borrower proves were caused by Agent's willful misconduct or gross negligence or Agent's willful failure to pay under any Letter of Credit after the presentation to it be received by the beneficiary of a sight draft and certificate(s) strictly complying Agent in connection with the terms and conditions of such Letter of Credit. In furtherance and not in limitation of the foregoing, Agent may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and Agent shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reasonTransaction.

Role of Agent. Each Lender (i) The Agent is registered as a broker-dealer with the U.S. Securities and Borrower agree thatExchange Commission and the Financial Industry Regulatory Authority, is acting hereunder for and on behalf of Dealer solely in paying its capacity as agent for Dealer pursuant to instructions from Dealer, and is not and will not be acting as Company’s agent, broker, advisor or fiduciary in any drawing respect under a Letter or in connection with the Transaction. (ii) In addition to acting as Dealer’s agent in executing the Transaction, the Agent is authorized from time to time to give written payment and/or delivery instructions to Company directing it to make its payments and/or deliveries under the Transaction to an account of Creditthe Agent for remittance to Dealer (or its designee), and for that purpose any such payment or delivery by Company to the Agent shall not have be treated as a payment or delivery to Dealer. (iii) Except as otherwise provided herein, any responsibility to obtain and all notices, demands, or communications of any document (other than any sight draft, certificates and documents expressly required kind transmitted in writing by either Dealer or Company under or in connection with the Letter of Credit) or to ascertain or inquire as Transaction will be transmitted exclusively by such party to the validity other party through the Agent at the following address: Xxxxx Fargo Securities, LLC 000 Xxxxx Xxxxxxx Xxxxxx, 0xx Xxxxx Xxxxxxxxx, XX 00000-0000 Facsimile No.: (000) 000-0000 Telephone No.: (000) 000-0000 Attention: Equity Derivatives (iv) The Agent shall have no responsibility or accuracy liability to Dealer or Company for or arising from (A) any failure by either Dealer or Company to perform any of their respective obligations under or in connection with the Transaction, (B) the collection or enforcement of any such document obligations, or (C) the authority exercise of the Person executing or delivering any such document. None of Agent, any Agent-Related Person nor any of the respective correspondentsrights and remedies of either Dealer or Company under or in connection with the Transaction. Each of Dealer and Company agrees to proceed solely against the other to collect or enforce any such obligations, participants or assignees of and the Agent shall be liable to any Lender have no liability in respect of the Transaction except for (i) any action taken or omitted in connection herewith at the request or with the approval of Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of its gross negligence or willful misconduct; or (iii) misconduct in performing its duties as the due execution, effectiveness, validity or enforceability agent of any document or instrument related to any Letter of Credit or Letter of Credit Application. Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude Borrower's pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of Agent, any Agent-Related Person, nor any of the respective correspondents, participants or assignees of Agent, shall be liable or responsible for any of the matters described in clauses (i) through Dealer. (v) Upon written request, the Agent will furnish to Dealer and Company the date and time of Section 2.03(e); provided, however, that anything in such clauses the execution of the Transaction and a statement as to the contrary notwithstanding, Borrower may have a claim against Agent, source and Agent may be liable to Borrower, to the extent, but only to the extent, amount of any direct, as opposed remuneration received or to consequential or exemplary, damages suffered by Borrower which Borrower proves were caused by Agent's willful misconduct or gross negligence or Agent's willful failure to pay under any Letter of Credit after the presentation to it be received by the beneficiary of a sight draft and certificate(s) strictly complying Agent in connection with the terms and conditions of such Letter of Credit. In furtherance and not in limitation of the foregoing, Agent may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and Agent shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reasonTransaction.

Role of Agent. Each Lender and Borrower agree thatCredit Suisse, New York branch, in paying its capacity as Agent will be responsible for (A) effecting this Transaction, (B) issuing all required confirmations and statements to Dealer and Company, (C) maintaining books and records relating to this Transaction in accordance with its standard practices and procedures and in accordance with applicable law and (D) unless otherwise requested by Company, receiving, delivering, and safeguarding Company’s funds and any drawing under a Letter of Creditsecurities in connection with this Transaction, Agent shall not have any responsibility to obtain any document (other than any sight draft, certificates in accordance with its standard practices and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of Agent, any Agent-Related Person nor any of the respective correspondents, participants or assignees of Agent shall be liable to any Lender for procedures and in accordance with applicable law. (i) any action taken or omitted Agent is acting in connection herewith at with this Transaction solely in its capacity as Agent for Dealer and Company pursuant to instructions from Dealer and Company. Agent shall have no responsibility or personal liability to Dealer or Company arising from any failure by Dealer or Company to pay or perform any obligations hereunder, or to monitor or enforce compliance by Dealer or Company with any obligation hereunder, including, without limitation, any obligations to maintain collateral. Each of Dealer and Company agrees to proceed solely against the request other to collect or recover any securities or monies owing to it in connection with the approval or as a result of Lenders or the Required Lendersthis Transaction. Agent shall otherwise have no liability in respect of this Transaction, as applicable; (ii) any action taken or omitted in the absence of except for its gross negligence or willful misconduct; misconduct in performing its duties as Agent. (ii) Any and all notices, demands, or communications of any kind relating to this Transaction between Dealer and Company shall be transmitted exclusively through Agent at the following address: Credit Suisse, New York branch Eleven Xxxxxxx Xxxxxx Xxx Xxxx, XX 00000-0000 For payments and deliveries: Facsimile No.: (000) 000 0000 Telephone No.: (000) 000 0000 / (000) 000 0000 For all other communications: Facsimile No.: (000) 000 0000 Telephone No.: (000) 000 0000 / (000) 000 0000 / (000) 000 0000 / (000) 000 0000 (iii) The date and time of the due execution, effectiveness, validity or enforceability Transaction evidenced hereby will be furnished by the Agent to Dealer and Company upon written request. (iv) The Agent will furnish to Company upon written request a statement as to the source and amount of any document remuneration received or instrument related to any Letter of Credit or Letter of Credit Application. Borrower hereby assumes all risks of be received by the acts or omissions of any beneficiary or transferee Agent in connection with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude Borrower's pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of Agent, any Agent-Related Person, nor any of the respective correspondents, participants or assignees of Agent, shall be liable or responsible for any of the matters described in clauses (i) through Transaction evidenced hereby. (v) Dealer and Company each represents and agrees (A) that this Transaction is not unsuitable for it in the light of Section 2.03(e); providedsuch party’s financial situation, howeverinvestment objectives and needs and (B) that it is entering into this Transaction in reliance upon such tax, that anything in such clauses to the contrary notwithstandingaccounting, Borrower may have a claim against Agentregulatory, legal and Agent may be liable to Borrower, to the extent, but only to the extent, of financial advice as it deems necessary and not upon any direct, as opposed to consequential or exemplary, damages suffered by Borrower which Borrower proves were caused by Agent's willful misconduct or gross negligence or Agent's willful failure to pay under any Letter of Credit after the presentation to it view expressed by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of such Letter of Credit. In furtherance and not in limitation of the foregoing, Agent may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and Agent shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit other or the rights or benefits thereunder or proceeds thereof, in whole or in part, Agent. (vi) Dealer is regulated by The Securities and Futures Authority and has entered into this Transaction as principal. The time at which may prove this Transaction was executed will be notified to be invalid or ineffective for any reasonCompany (through the Agent) on request.

Role of Agent. Each Lender and Borrower agree thatCredit Suisse, New York branch, in paying its capacity as Agent will be responsible for (A) effecting this Transaction, (B) issuing all required confirmations and statements to Dealer and Counterparty, (C) maintaining books and records relating to this Transaction in accordance with its standard practices and procedures and in accordance with applicable law and (D) unless otherwise requested by Counterparty, receiving, delivering, and safeguarding Counterparty’s funds and any drawing under a Letter of Creditsecurities in connection with this Transaction, Agent shall not have any responsibility to obtain any document (other than any sight draft, certificates in accordance with its standard practices and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of Agent, any Agent-Related Person nor any of the respective correspondents, participants or assignees of Agent shall be liable to any Lender for procedures and in accordance with applicable law. (i) any action taken or omitted Agent is acting in connection herewith at with this Transaction solely in its capacity as Agent for Dealer and Counterparty pursuant to instructions from Dealer and Counterparty. Agent shall have no responsibility or personal liability to Dealer or Counterparty arising from any failure by Dealer or Counterparty to pay or perform any obligations hereunder, or to monitor or enforce compliance by Dealer or Counterparty with any obligation hereunder, including, without limitation, any obligations to maintain collateral. Each of Dealer and Counterparty agrees to proceed solely against the request other to collect or recover any securities or monies owing to it in connection with the approval or as a result of Lenders or the Required Lendersthis Transaction. Agent shall otherwise have no liability in respect of this Transaction, as applicable; (ii) any action taken or omitted in the absence of except for its gross negligence or willful misconduct; misconduct in performing its duties as Agent. (ii) Any and all notices, demands, or communications of any kind relating to this Transaction between Dealer and Counterparty shall be transmitted exclusively through Agent at the following address: Credit Suisse, New York branch Eleven Xxxxxxx Xxxxxx Xxx Xxxx, XX 00000-0000 For payments and deliveries: Facsimile No.: (000) 000 0000 Telephone No.: (000) 000 0000 / (000) 000 0000 For all other communications: Facsimile No.: (000) 000 0000 Telephone No.: (000) 000 0000 / (000) 000 0000 / (000) 000 0000 / (000) 000 0000 (iii) The date and time of the due execution, effectiveness, validity or enforceability Transaction evidenced hereby will be furnished by the Agent to Dealer and Counterparty upon written request. (iv) The Agent will furnish to Counterparty upon written request a statement as to the source and amount of any document remuneration received or instrument related to any Letter of Credit or Letter of Credit Application. Borrower hereby assumes all risks of be received by the acts or omissions of any beneficiary or transferee Agent in connection with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude Borrower's pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of Agent, any Agent-Related Person, nor any of the respective correspondents, participants or assignees of Agent, shall be liable or responsible for any of the matters described in clauses (i) through Transaction evidenced hereby. (v) Dealer and Counterparty each represents and agrees (A) that this Transaction is not unsuitable for it in the light of Section 2.03(e); providedsuch party’s financial situation, howeverinvestment objectives and needs and (B) that it is entering into this Transaction in reliance upon such tax, that anything in such clauses to the contrary notwithstandingaccounting, Borrower may have a claim against Agentregulatory, legal and Agent may be liable to Borrower, to the extent, but only to the extent, of financial advice as it deems necessary and not upon any direct, as opposed to consequential or exemplary, damages suffered by Borrower which Borrower proves were caused by Agent's willful misconduct or gross negligence or Agent's willful failure to pay under any Letter of Credit after the presentation to it view expressed by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of such Letter of Credit. In furtherance and not in limitation of the foregoing, Agent may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and Agent shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit other or the rights or benefits thereunder or proceeds thereof, in whole or in part, Agent. (vi) Dealer is regulated by The Securities and Futures Authority and has entered into this Transaction as principal. The time at which may prove this Transaction was executed will be notified to be invalid or ineffective for any reasonCounterparty (through the Agent) on request.

Role of Agent. Each Lender and Borrower agree thatCredit Suisse AG, New York branch, in paying any drawing under a Letter of Creditits capacity as Agent will be responsible for (A) effecting the Transaction, Agent shall not have any responsibility (B) issuing all required confirmations and statements to obtain any document Dealer and Counterparty, (other than any sight draft, certificates C) maintaining books and documents expressly required by the Letter of Credit) or to ascertain or inquire as records relating to the validity or accuracy of Transaction in accordance with its standard practices and procedures and in accordance with applicable law and (D) unless otherwise requested by Counterparty, receiving, delivering, and safeguarding Counterparty’s funds and any such document or securities in connection with the authority of the Person executing or delivering any such document. None of AgentTransaction, any Agent-Related Person nor any of the respective correspondents, participants or assignees of Agent shall be liable to any Lender for in accordance with its standard practices and procedures and in accordance with applicable law. (i) any action taken or omitted Agent is acting in connection herewith at the request or with the approval Transaction solely in its capacity as Agent for Dealer and Counterparty pursuant to instructions from Dealer and Counterparty. Agent shall have no responsibility or personal liability to Dealer or Counterparty arising from any failure by Dealer or Counterparty to pay or perform any obligations hereunder, or to monitor or enforce compliance by Dealer or Counterparty with any obligations hereunder, including, without limitation, any obligations to maintain collateral. Each of Lenders Dealer and Counterparty agrees to proceed solely against the other to collect or recover any securities or monies owing to it in connection with or as a result of the Required LendersTransaction. Agent shall otherwise have no liability in respect of the Transaction, as applicable; (ii) any action taken or omitted in the absence of except for its gross negligence or willful misconduct; or misconduct in performing its duties as Agent. (ii) The date and time of the Transaction evidenced hereby will be furnished by Agent to Dealer and Counterparty upon written request. (iii) Agent will furnish to Counterparty upon written request a statement as to the due execution, effectiveness, validity or enforceability source and amount of any document remuneration received or instrument related to any Letter of Credit or Letter of Credit Application. Borrower hereby assumes all risks of be received by Agent in connection with the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, Transaction evidenced hereby. (iv) Dealer and Counterparty each represents and agrees (A) that this assumption the Transaction is not intended tounsuitable for it in the light of such party’s financial situation, investment objectives and shall notneeds and (B) that it is entering into the Transaction in reliance upon such tax, preclude Borrower's pursuing such rights accounting, regulatory, legal and remedies financial advice as it may have against deems necessary and not upon any view expressed by the beneficiary other party or transferee at law or under any other agreement. None of Agent, any Agent-Related Person, nor any of the respective correspondents, participants or assignees of Agent, shall be liable or responsible for any of the matters described in clauses (i) through . (v) of Section 2.03(e); provided, however, that anything in such clauses Dealer is regulated by The Securities and Futures Authority and has entered into the Transaction as principal. The time at which the Transaction was executed will be notified to the contrary notwithstanding, Borrower may have a claim against Counterparty (through Agent, and Agent may be liable to Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by Borrower which Borrower proves were caused by Agent's willful misconduct or gross negligence or Agent's willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of such Letter of Credit. In furtherance and not in limitation of the foregoing, Agent may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and Agent shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reasonrequest.

Role of Agent. Each Lender (i) The Agent is registered as a broker-dealer with the U.S. Securities and Borrower agree thatExchange Commission and the Financial Industry Regulatory Authority, is acting hereunder for and on behalf of Dealer solely in paying its capacity as agent for Dealer pursuant to instructions from Dealer, and is not and will not be acting as the Counterparty’s agent, broker, advisor or fiduciary in any drawing respect under a Letter or in connection with the Transaction. (ii) In addition to acting as Dealer’s agent in executing the Transaction, the Agent is authorized from time to time to give written payment and/or delivery instructions to the Counterparty directing it to make its payments and/or deliveries under the Transaction to an account of Creditthe Agent for remittance to Dealer (or its designee), and for that purpose any such payment or delivery by the Counterparty to the Agent shall not have be treated as a payment or delivery to Dealer. (iii) Except as otherwise provided herein, any responsibility to obtain and all notices, demands, or communications of any document (other than any sight draft, certificates and documents expressly required kind transmitted in writing by either Dealer or the Letter of Credit) Counterparty under or to ascertain or inquire as in connection with the Transaction will be transmitted exclusively by such party to the validity other party through the Agent at the following address: Wxxxx Fargo Securities, LLC 200 Xxxxx Xxxxxxx Xxxxxx, 0xx Xxxxx Xxxxxxxxx, XX 00000-0000 Facsimile No.: (000) 000-0000 Telephone No.: (000) 000-0000 Attention: Equity Derivatives (iv) The Agent shall have no responsibility or accuracy liability to Dealer or the Counterparty for or arising from (1) any failure by either Dealer or the Counterparty to perform any of their respective obligations under or in connection with the Transaction, (2) the collection or enforcement of any such document obligations, or (3) the authority exercise of the Person executing or delivering any such document. None of Agent, any Agent-Related Person nor any of the respective correspondentsrights and remedies of either Dealer or the Counterparty under or in connection with the Transaction. Each of Dealer and the Counterparty agrees to proceed solely against the other to collect or enforce any such obligations, participants or assignees of and the Agent shall be liable to any Lender have no liability in respect of the Transaction except for (i) any action taken or omitted in connection herewith at the request or with the approval of Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of its gross negligence or willful misconduct; or (iii) misconduct in performing its duties as the due execution, effectiveness, validity or enforceability agent of any document or instrument related to any Letter of Credit or Letter of Credit Application. Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude Borrower's pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of Agent, any Agent-Related Person, nor any of the respective correspondents, participants or assignees of Agent, shall be liable or responsible for any of the matters described in clauses (i) through Dealer. (v) Upon written request, the Agent will furnish to Dealer and the Counterparty the date and time of Section 2.03(e); provided, however, that anything in such clauses the execution of the Transaction and a statement as to the contrary notwithstanding, Borrower may have a claim against Agent, source and Agent may be liable to Borrower, to the extent, but only to the extent, amount of any direct, as opposed remuneration received or to consequential or exemplary, damages suffered by Borrower which Borrower proves were caused by Agent's willful misconduct or gross negligence or Agent's willful failure to pay under any Letter of Credit after the presentation to it be received by the beneficiary of a sight draft and certificate(s) strictly complying Agent in connection with the terms and conditions of such Letter of Credit. In furtherance and not in limitation of the foregoing, Agent may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and Agent shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reasonTransaction.

Role of Agent. Each Lender and Borrower agree that, in paying any drawing under a Letter of Credit, Agent shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document, except to the extent required by applicable law. None of Agent, any Agent-Related Person nor any of the respective correspondents, participants or assignees of Agent shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Letter of Credit Application. Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude Borrower's pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of Agent, any Agent-Related Person, nor any of the respective correspondents, participants or assignees of Agent, shall be liable or responsible for any of the matters described in clauses (i) through (v) of Section 2.03(e2.3(e); provided, however, that anything in such clauses to the contrary notwithstanding, Borrower may have a claim against Agent, and Agent may be liable to Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by Borrower which Borrower proves were caused by Agent's willful misconduct or gross negligence or Agent's willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of such Letter of Credit. In furtherance and not in limitation of the foregoing, Agent may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and Agent shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.

Role of Agent. Each Lender and Borrower agree thatCredit Suisse AG, New York branch, in paying any drawing under a Letter of Creditits capacity as Agent will be responsible for (A) effecting the Transaction, Agent shall not have any responsibility (B) issuing all required confirmations and statements to obtain any document Dealer and Company, (other than any sight draft, certificates C) maintaining books and documents expressly required by the Letter of Credit) or to ascertain or inquire as records relating to the validity or accuracy of Transaction in accordance with its standard practices and procedures and in accordance with applicable law and (D) unless otherwise requested by Company, receiving, delivering, and safeguarding Company’s funds and any such document or securities in connection with the authority of the Person executing or delivering any such document. None of AgentTransaction, any Agent-Related Person nor any of the respective correspondents, participants or assignees of Agent shall be liable to any Lender for in accordance with its standard practices and procedures and in accordance with applicable law. (i) any action taken or omitted Agent is acting in connection herewith at the request or with the approval Transaction solely in its capacity as Agent for Dealer and Company pursuant to instructions from Dealer and Company. Agent shall have no responsibility or personal liability to Dealer or Company arising from any failure by Dealer or Company to pay or perform any obligations hereunder, or to monitor or enforce compliance by Dealer or Company with any obligations hereunder, including, without limitation, any obligations to maintain collateral. Each of Lenders Dealer and Company agrees to proceed solely against the other to collect or recover any securities or monies owing to it in connection with or as a result of the Required LendersTransaction. Agent shall otherwise have no liability in respect of the Transaction, as applicable; (ii) any action taken or omitted in the absence of except for its gross negligence or willful misconduct; or misconduct in performing its duties as Agent. (ii) The date and time of the Transaction evidenced hereby will be furnished by Agent to Dealer and Company upon written request. (iii) Agent will furnish to Company upon written request a statement as to the due execution, effectiveness, validity or enforceability source and amount of any document remuneration received or instrument related to any Letter of Credit or Letter of Credit Application. Borrower hereby assumes all risks of be received by Agent in connection with the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, Transaction evidenced hereby. (iv) Dealer and Company each represents and agrees (A) that this assumption the Transaction is not intended tounsuitable for it in the light of such party’s financial situation, investment objectives and shall notneeds and (B) that it is entering into the Transaction in reliance upon such tax, preclude Borrower's pursuing such rights accounting, regulatory, legal and remedies financial advice as it may have against deems necessary and not upon any view expressed by the beneficiary other party or transferee at law or under any other agreement. None of Agent, any Agent-Related Person, nor any of the respective correspondents, participants or assignees of Agent, shall be liable or responsible for any of the matters described in clauses (i) through . (v) of Section 2.03(e); provided, however, that anything in such clauses Dealer is regulated by The Securities and Futures Authority and has entered into the Transaction as principal. The time at which the Transaction was executed will be notified to the contrary notwithstanding, Borrower may have a claim against Company (through Agent, and Agent may be liable to Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by Borrower which Borrower proves were caused by Agent's willful misconduct or gross negligence or Agent's willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of such Letter of Credit. In furtherance and not in limitation of the foregoing, Agent may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and Agent shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reasonrequest.

Role of Agent. Each Lender and Borrower agree that, in paying any drawing under a Letter [Alternative 1][[ ] (“[Agent]”) is acting as agent for both parties but does not guarantee the performance of Credit, Agent shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of Agent, any Agent-Related Person nor any of the respective correspondents, participants or assignees of Agent shall be liable to any Lender for either party. (i) Neither Dealer nor Company shall contact the other with respect to any action taken or omitted in connection herewith at matter relating to the request or with Transaction without the approval direct involvement of Lenders or the Required Lenders, as applicable[Agent]; (ii) [Agent], Dealer and Company each hereby acknowledges that any action transactions by Dealer or [Agent] with respect to Shares will be undertaken by Dealer as principal for its own account; (iii) all of the actions to be taken by Dealer and [Agent] in connection with the Transaction shall be taken by Dealer or omitted [Agent] independently and without any advance or subsequent consultation with Company; and (iv) [Agent] is hereby authorized to act as agent for Company only to the extent required to satisfy the requirements of Rule 15a-6 under the Exchange Act in respect of the absence Transaction.] [[Alternative 2][Each of gross negligence Dealer and Company acknowledges to and agrees with the other party hereto and to and with the Agent that (i) the Agent is acting as agent for Dealer under the Transaction pursuant to instructions from Dealer, (ii) the Agent is not a principal or willful misconduct; or party to the Transaction, and may transfer its rights and obligations with respect to the Transaction, (iii) the due executionAgent shall have no responsibility, effectivenessobligation or liability, validity by way of issuance, guaranty, endorsement or enforceability of otherwise in any document or instrument related to any Letter of Credit or Letter of Credit Application. Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee manner with respect to its use the performance of any Letter of Credit; providedeither party under the Transaction, however(iv) Dealer and the Agent have not given, that this assumption and Company is not intended torelying (for purposes of making any investment decision or otherwise) upon, any statements, opinions or representations (whether written or oral) of Dealer or the Agent, other than the representations expressly set forth in this Confirmation or the Agreement, and shall not, preclude Borrower's pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of Agent, any Agent-Related Person, nor any of the respective correspondents, participants or assignees of Agent, shall be liable or responsible for any of the matters described in clauses (i) through (v) of Section 2.03(e); providedeach party agrees to proceed solely against the other party, however, that anything in such clauses to and not the contrary notwithstanding, Borrower may have a claim against Agent, and Agent may be liable to Borrower, to the extent, but only to the extent, of collect or recover any direct, as opposed to consequential money or exemplary, damages suffered by Borrower which Borrower proves were caused by Agent's willful misconduct or gross negligence or Agent's willful failure to pay under any Letter of Credit after the presentation securities owed to it by the beneficiary of a sight draft and certificate(s) strictly complying in connection with the terms Transaction. Each party hereto acknowledges and conditions agrees that the Agent is an intended third party beneficiary hereunder. Company acknowledges that the Agent is an affiliate of such Letter Dealer. Dealer will be acting for its own account in respect of Credit. In furtherance this Confirmation and not in limitation of the foregoing, Agent may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and Agent shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reasonTransaction contemplated hereunder.]

Role of Agent. Each Lender (i) The Agent is registered as a broker-dealer with the U.S. Securities and Borrower agree thatExchange Commission and the Financial Industry Regulatory Authority, is acting hereunder for and on behalf of Dealer solely in paying its capacity as agent for Dealer pursuant to instructions from Dealer, and is not and will not be acting as the Counterparty’s agent, broker, advisor or fiduciary in any drawing respect under a Letter or in connection with the Transaction. (ii) In addition to acting as Dealer’s agent in executing the Transaction, the Agent is authorized from time to time to give written payment and/or delivery instructions to the Counterparty directing it to make its payments and/or deliveries under the Transaction to an account of Creditthe Agent for remittance to Dealer (or its designee), and for that purpose any such payment or delivery by the Counterparty to the Agent shall not have be treated as a payment or delivery to Dealer. (iii) Except as otherwise provided herein, any responsibility to obtain and all notices, demands, or communications of any document (other than any sight draft, certificates and documents expressly required kind transmitted in writing by either Dealer or the Letter of Credit) Counterparty under or to ascertain or inquire as in connection with the Transaction will be transmitted exclusively by such party to the validity other party through the Agent at the following address: Wxxxx Fargo Securities, LLC 200 Xxxxx Xxxxxxx Xxxxxx, 0xx Floor Charlotte, NC 28288-0601 Facsimile No.: (000) 000-0000 Telephone No.: (000) 000-0000 Attention: Equity Derivatives (iv) The Agent shall have no responsibility or accuracy liability to Dealer or the Counterparty for or arising from (1) any failure by either Dealer or the Counterparty to perform any of their respective obligations under or in connection with the Transaction, (2) the collection or enforcement of any such document obligations, or (3) the authority exercise of the Person executing or delivering any such document. None of Agent, any Agent-Related Person nor any of the respective correspondentsrights and remedies of either Dealer or the Counterparty under or in connection with the Transaction. Each of Dealer and the Counterparty agrees to proceed solely against the other to collect or enforce any such obligations, participants or assignees of and the Agent shall be liable to any Lender have no liability in respect of the Transaction except for (i) any action taken or omitted in connection herewith at the request or with the approval of Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of its gross negligence or willful misconduct; or (iii) misconduct in performing its duties as the due execution, effectiveness, validity or enforceability agent of any document or instrument related to any Letter of Credit or Letter of Credit Application. Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude Borrower's pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of Agent, any Agent-Related Person, nor any of the respective correspondents, participants or assignees of Agent, shall be liable or responsible for any of the matters described in clauses (i) through Dealer. (v) Upon written request, the Agent will furnish to Dealer and the Counterparty the date and time of Section 2.03(e); provided, however, that anything in such clauses the execution of the Transaction and a statement as to the contrary notwithstanding, Borrower may have a claim against Agent, source and Agent may be liable to Borrower, to the extent, but only to the extent, amount of any direct, as opposed remuneration received or to consequential or exemplary, damages suffered by Borrower which Borrower proves were caused by Agent's willful misconduct or gross negligence or Agent's willful failure to pay under any Letter of Credit after the presentation to it be received by the beneficiary of a sight draft and certificate(s) strictly complying Agent in connection with the terms and conditions of such Letter of Credit. In furtherance and not in limitation of the foregoing, Agent may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and Agent shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reasonTransaction.

Role of Agent. Each Lender and Borrower agree that, in paying any drawing under a Letter [Alternative 1: Reserved.][Alternative 2: [Dealer] (“[Agent]”) is acting as agent for both parties but does not guarantee the performance of Credit, Agent shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of Agent, any Agent-Related Person nor any of the respective correspondents, participants or assignees of Agent shall be liable to any Lender for either party. (i) Neither Dealer nor Company shall contact the other with respect to any action taken or omitted in connection herewith at matter relating to the request or with Transaction without the approval direct involvement of Lenders or the Required Lenders, as applicable[Agent]; (ii) [Agent], Dealer and Company each hereby acknowledges that any action transactions by Dealer or [Agent] with respect to Shares will be undertaken by Dealer as principal for its own account; (iii) all of the actions to be taken by Dealer and [Agent] in connection with the Transaction shall be taken by Dealer or omitted [Agent] independently and without any advance or subsequent consultation with Company; and (iv) [Agent] is hereby authorized to act as agent for Company only to the extent required to satisfy the requirements of Rule 15a-6 under the Exchange Act in respect of the absence Transaction.] [Alternative 3: Each of gross negligence Dealer and Company acknowledges to and agrees with the other party hereto and to and with the Agent that (i) the Agent is acting as agent for Dealer under the Transaction pursuant to instructions from Dealer, (ii) the Agent is not a principal or willful misconduct; or party to the Transaction, and may transfer its rights and obligations with respect to the Transaction, (iii) the due executionAgent shall have no responsibility, effectivenessobligation or liability, validity by way of issuance, guaranty, endorsement or enforceability of otherwise in any document or instrument related to any Letter of Credit or Letter of Credit Application. Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee manner with respect to its use the performance of any Letter of Credit; providedeither party under the Transaction, however(iv) Dealer and the Agent have not given, that this assumption and Company is not intended torelying (for purposes of making any investment decision or otherwise) upon, any statements, opinions or representations (whether written or oral) of Dealer or the Agent, other than the representations expressly set forth in this Confirmation or the Agreement, and shall not, preclude Borrower's pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of Agent, any Agent-Related Person, nor any of the respective correspondents, participants or assignees of Agent, shall be liable or responsible for any of the matters described in clauses (i) through (v) of Section 2.03(e); providedeach party agrees to proceed solely against the other party, however, that anything in such clauses to and not the contrary notwithstanding, Borrower may have a claim against Agent, and Agent may be liable to Borrower, to the extent, but only to the extent, of collect or recover any direct, as opposed to consequential money or exemplary, damages suffered by Borrower which Borrower proves were caused by Agent's willful misconduct or gross negligence or Agent's willful failure to pay under any Letter of Credit after the presentation securities owed to it by the beneficiary of a sight draft and certificate(s) strictly complying in connection with the terms Transaction. Each party hereto acknowledges and conditions agrees that the Agent is an intended third party beneficiary hereunder. Company acknowledges that the Agent is an affiliate of such Letter Dealer. Dealer will be acting for its own account in respect of Credit. In furtherance this Confirmation and not in limitation of the foregoing, Agent may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and Agent shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reasonTransaction contemplated hereunder.]

Role of Agent. Each Lender and Borrower agree that, in paying any drawing under a Letter of Credit, Agent shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of Agent, any Agent-of its Related Person Parties nor any of the respective correspondents, participants or assignees of Agent shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Letter of Credit Application. Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude Borrower's ’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of Agent, any Agent-of its Related Person, Parties nor any of the respective correspondentscorrespondent, participants participant or assignees assignee of Agent, shall be liable or responsible for any of the matters described in clauses (i) through (v) of Section 2.03(e); provided, however, that anything in such clauses to the contrary notwithstanding, Borrower may have a claim against Agent, and Agent may be liable to Borrower, to the extent, but only to the extent, of any direct, direct damages (as opposed to consequential or exemplaryexemplary damages, damages claims in respect of which are hereby waived by Borrower to the extent permitted by applicable law) suffered by Borrower which Borrower proves (as finally determined by a court of competent jurisdiction) were caused by Agent's ’s willful misconduct or gross negligence or Agent's ’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of such Letter of Credit. The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of the Agent (as finally determined by a court of competent jurisdiction), the Agent shall be deemed to have exercised care in each such determination. In furtherance and not in limitation of the foregoing, Agent may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and Agent shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.

Role of Agent. Each Lender (i) The Agent is registered as a broker-dealer with the U.S. Securities and Borrower agree thatExchange Commission and the National Association of Securities Dealers, is acting hereunder for and on behalf of Dealer solely in paying its capacity as agent for Dealer pursuant to instructions from Dealer, and is not and will not be acting as Company’s agent, broker, advisor or fiduciary in any drawing respect under a Letter or in connection with this Transaction. (ii) In addition to acting as Dealer’s agent in executing this Transaction, the Agent is authorized from time to time to give written payment and/or delivery instructions to Company directing it to make its payments and/or deliveries under this Transaction to an account of Creditthe Agent for remittance to Dealer (or its designee), and for that purpose any such payment or delivery by Company to the Agent shall not have be treated as a payment or delivery to Dealer. (iii) Except as otherwise provided herein, any responsibility to obtain and all notices, demands, or communications of any document (other than any sight draft, certificates and documents expressly required kind transmitted in writing by the Letter of Credit) either Dealer or to ascertain Company under or inquire as in connection with this Transaction will be transmitted exclusively by such Party to the validity other Party through the Agent at the following address: Wachovia Capital Markets, LLC 000 Xxxxx Xxxxxxx Xxxxxx, 0xx Xxxxx Xxxxxxxxx, XX 00000-0000 Facsimile No.: (000) 000-0000 Telephone No.: (000) 000-0000 Attention: Equity Derivatives (iv) The Agent shall have no responsibility or accuracy liability to Dealer or Company for or arising from (A) any failure by either Dealer or Company to perform any of their respective obligations under or in connection with this Transaction, (B) the collection or enforcement of any such document obligations, or (C) the authority exercise of the Person executing or delivering any such document. None of Agent, any Agent-Related Person nor any of the respective correspondentsrights and remedies of either Dealer or Company under or in connection with this Transaction. Each of Dealer and Company agrees to proceed solely against the other to collect or enforce any such obligations, participants or assignees of and the Agent shall be liable to any Lender have no liability in respect of this Transaction except for (i) any action taken or omitted in connection herewith at the request or with the approval of Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of its gross negligence or willful misconduct; or (iii) misconduct in performing its duties as the due execution, effectiveness, validity or enforceability agent of any document or instrument related to any Letter of Credit or Letter of Credit Application. Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude Borrower's pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of Agent, any Agent-Related Person, nor any of the respective correspondents, participants or assignees of Agent, shall be liable or responsible for any of the matters described in clauses (i) through Dealer. (v) Upon written request, the Agent will furnish to Dealer and Company the date and time of Section 2.03(e); provided, however, that anything in such clauses the execution of this Transaction and a statement as to the contrary notwithstanding, Borrower may have a claim against Agent, source and Agent may be liable to Borrower, to the extent, but only to the extent, amount of any direct, as opposed remuneration received or to consequential or exemplary, damages suffered by Borrower which Borrower proves were caused by Agent's willful misconduct or gross negligence or Agent's willful failure to pay under any Letter of Credit after the presentation to it be received by the beneficiary of a sight draft and certificate(s) strictly complying Agent in connection with the terms and conditions of such Letter of Credit. In furtherance and not in limitation of the foregoing, Agent may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and Agent shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reasonthis Transaction.

Role of Agent. Each Lender and Borrower agree that, in paying any drawing under a Letter of Credit, Agent shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. document None of Agent, Agent any Agent-Related Person nor any of the respective correspondents, participants or assignees of Agent shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Letter of Credit Application. Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude Borrower's pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. agreement None of Agent, Agent any Agent-Related Person, nor any of the respective correspondents, participants or assignees of Agent, Agent shall be liable or responsible for any of the matters described in clauses (i) through (v) of Section 2.03(e); provided, however, that anything in such clauses to the contrary notwithstanding, Borrower may have a claim against Agent, Agent and Agent may be liable to Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by Borrower which Borrower proves were caused by Agent's Agents willful misconduct or gross negligence or Agent's willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of such Letter of Credit. Credit In furtherance and not in limitation of the foregoing, Agent may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and Agent shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.

Role of Agent. [Each Lender of Dealer and Borrower agree that, in paying any drawing under a Letter of Credit, Counterparty acknowledges to and agrees with the other party hereto and to and with the Agent shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of Agent, any Agent-Related Person nor any of the respective correspondents, participants or assignees of Agent shall be liable to any Lender for that (i) the Agent is acting as agent for Dealer under the Transaction pursuant to instructions from such party, (ii) the Agent is not a principal or party to the Transaction, and may transfer its rights and obligations with respect to the Transaction, (iii) the Agent shall have no responsibility, obligation or liability, by way of issuance, guaranty, endorsement or otherwise in any action taken manner with respect to the performance of either party under the Transaction, (iv) Dealer and the Agent have not given, and Counterparty is not relying (for purposes of making any investment decision or omitted otherwise) upon, any statements, opinions or representations (whether written or oral) of Dealer or the Agent, other than the representations expressly set forth in this Confirmation or the Agreement, and (v) each party agrees to proceed solely against the other party, and not the Agent, to collect or recover any money or securities owed to it in connection herewith at the request or with the approval Transaction. Each party hereto acknowledges and agrees that the Agent is an intended third party beneficiary hereunder. Counterparty acknowledges that the Agent is an affiliate of Lenders or Dealer. Dealer will be acting for its own account in respect of this Confirmation and the Required Lenders, as applicableTransaction contemplated hereunder. The time of dealing for the Transaction will be (i) Neither Dealer nor Counterparty shall contact the other with respect to any matter relating to the Transaction without the direct involvement of MS&CO; (ii) MS&CO, Dealer and Counterparty each hereby acknowledges that any action taken transactions by Dealer or omitted in the absence of gross negligence or willful misconductMS&CO with respect to Shares will be undertaken by Dealer as principal for its own account; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Letter of Credit Application. Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee actions to be taken by Dealer and MS&CO in connection with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude Borrower's pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of Agent, any Agent-Related Person, nor any of the respective correspondents, participants or assignees of Agent, Transaction shall be liable taken by Dealer or responsible MS&CO independently and without any advance or subsequent consultation with Counterparty; and (iv) MS&CO is hereby authorized to act as agent for any of the matters described in clauses (i) through (v) of Section 2.03(e); provided, however, that anything in such clauses to the contrary notwithstanding, Borrower may have a claim against Agent, and Agent may be liable to Borrower, to the extent, but Counterparty only to the extent, extent required to satisfy the requirements of any direct, as opposed to consequential or exemplary, damages suffered by Borrower which Borrower proves were caused by Agent's willful misconduct or gross negligence or Agent's willful failure to pay Rule 15a-6 under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of such Letter of Credit. In furtherance and not Exchange Act in limitation respect of the foregoing, Agent may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and Agent shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.Transaction.]12

Role of Agent. Each Lender (i) The Agent is registered as a broker-dealer with the U.S. Securities and Borrower agree thatExchange Commission and the National Association of Securities Dealers, is acting hereunder for and on behalf of Dealer solely in paying its capacity as agent for Dealer pursuant to instructions from Dealer, and is not and will not be acting as Counterparty’s agent, broker, advisor or fiduciary in any drawing respect under a Letter or in connection with this Transaction. (ii) In addition to acting as Dealer’s agent in executing this Transaction, the Agent is authorized from time to time to give written payment and/or delivery instructions to Counterparty directing it to make its payments and/or deliveries under this Transaction to an account of Creditthe Agent for remittance to Dealer (or its designee), and for that purpose any such payment or delivery by Counterparty to the Agent shall not have be treated as a payment or delivery to Dealer. (iii) Except as otherwise provided herein, any responsibility to obtain and all notices, demands, or communications of any document (other than any sight draft, certificates and documents expressly required kind transmitted in writing by the Letter of Credit) either Dealer or to ascertain Counterparty under or inquire as in connection with this Transaction will be transmitted exclusively by such Party to the validity other Party through the Agent at the following address: Wachovia Capital Markets, LLC 000 Xxxxx Xxxxxxx Xxxxxx, 0xx Xxxxx Xxxxxxxxx, XX 00000-0000 Facsimile No.: (000) 000-0000 Telephone No.: (000) 000-0000 Attention: Equity Derivatives (iv) The Agent shall have no responsibility or accuracy liability to Dealer or Counterparty for or arising from (A) any failure by either Dealer or Counterparty to perform any of their respective obligations under or in connection with this Transaction, (B) the collection or enforcement of any such document obligations, or (C) the authority exercise of the Person executing or delivering any such document. None of Agent, any Agent-Related Person nor any of the respective correspondentsrights and remedies of either Dealer or Counterparty under or in connection with this Transaction. Each of Dealer and Counterparty agrees to proceed solely against the other to collect or enforce any such obligations, participants or assignees of and the Agent shall be liable to any Lender have no liability in respect of this Transaction except for (i) any action taken or omitted in connection herewith at the request or with the approval of Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of its gross negligence or willful misconduct; or (iii) misconduct in performing its duties as the due execution, effectiveness, validity or enforceability agent of any document or instrument related to any Letter of Credit or Letter of Credit Application. Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude Borrower's pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of Agent, any Agent-Related Person, nor any of the respective correspondents, participants or assignees of Agent, shall be liable or responsible for any of the matters described in clauses (i) through Dealer. (v) Upon written request, the Agent will furnish to Dealer and Counterparty the date and time of Section 2.03(e); provided, however, that anything in such clauses the execution of this Transaction and a statement as to the contrary notwithstanding, Borrower may have a claim against Agent, source and Agent may be liable to Borrower, to the extent, but only to the extent, amount of any direct, as opposed remuneration received or to consequential or exemplary, damages suffered by Borrower which Borrower proves were caused by Agent's willful misconduct or gross negligence or Agent's willful failure to pay under any Letter of Credit after the presentation to it be received by the beneficiary of a sight draft and certificate(s) strictly complying Agent in connection with the terms and conditions of such Letter of Credit. In furtherance and not in limitation of the foregoing, Agent may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and Agent shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reasonthis Transaction.

Role of Agent. Each Lender and Borrower agree that, in paying any drawing under a Letter of Credit, Agent shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of Agent, any Agent-Related Person nor any of the respective correspondents, participants or assignees of Agent shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Letter of Credit Application. Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, howeverprovided that, that this assumption is not intended to, and shall not, preclude Borrower's ’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of Agent, any Agent-Related Person, nor any of the respective correspondents, participants or assignees of Agent, shall be liable or responsible for any of the matters described in clauses (i) through (v) of Section 2.03(e); provided, howeverprovided that, that anything in such clauses to the contrary notwithstanding, Borrower may have a claim against Agent, and Agent may be liable to Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by Borrower which Borrower proves were caused by Agent's ’s willful misconduct or gross negligence or Agent's ’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of such Letter of Credit. In furtherance and not in limitation of the foregoing, Agent may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and Agent shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.

Role of Agent. Each Lender and Borrower agree that, in paying any drawing under a Letter of Credit, Agent shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of Agent, any Agent-Related Person nor any of the respective correspondents, participants or assignees of Agent shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Letter of Credit Application. Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude Borrower's pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of Agent, any Agent-Agent- Related Person, nor any of the respective correspondents, participants or assignees of Agent, shall be liable or responsible for any of the matters described in clauses (i) through (v) of Section 2.03(e); provided, however, that anything in such clauses to the contrary notwithstanding, Borrower may have a claim against Agent, and Agent may be liable to Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by Borrower which Borrower proves were caused by Agent's willful misconduct or gross negligence or Agent's willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of such Letter of Credit. In furtherance and not in limitation of the foregoing, Agent may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and Agent shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.

Role of Agent. Each Lender of the Undersigned and Borrower agree thatthe Holder acknowledges that (a) it understands that the Company intends to pay the Agent a fee in respect of the Exchange; (b) there is no investment banker, in paying broker, finder or other intermediary which has been retained by, will be retained by or is authorized to act on behalf of the Holder who might be entitled to any drawing under a Letter fee or commission from the Company or the Holder upon consummation of Creditthe transactions contemplated by this Agreement; (c) it understands that the Company, the Agent shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by others will rely upon the Letter of Credit) or to ascertain or inquire as to the validity or truth and accuracy of any such document or the authority of the Person executing or delivering any such document. None of Agentforegoing representations, any Agent-Related Person nor warranties and covenants and agrees that if any of the respective correspondentsrepresentations and warranties deemed to have been made by it by its participation in the transactions contemplated by this Agreement and acquisition of the Exchange Shares are no longer accurate, participants the Holder shall promptly notify the Company and the Agent; (d) the Agent has not provided any legal, accounting or assignees of Agent shall be liable to any Lender for (i) any action taken or omitted tax advice in connection herewith at the request or with the approval Exchange or any advice in relation to selling restrictions and other securities laws matters in any jurisdiction in connection with the Exchange; and (e) the Agent has not acted as a financial advisor or fiduciary to the Holder and that the Agent and its respective directors, officers, employees, representatives and controlling persons have no responsibility for making, and have not made, any independent investigation of Lenders the information contained herein or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence Company’s SEC filings and make no representation or willful misconduct; warranty to the Holder, express or (iii) the due executionimplied, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Letter of Credit Application. Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use the Company, the Exchanged Notes or the Exchange Shares or the accuracy, completeness or adequacy of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude Borrower's pursuing such rights and remedies as it may have against the beneficiary information provided to the Holder or transferee at law or under any other agreement. None of Agent, any Agent-Related Personpublicly available information, nor shall any of the respective correspondents, participants or assignees of Agent, shall foregoing persons be liable or responsible for any loss or damages of any kind resulting from the use of the matters described in clauses (i) through (v) of Section 2.03(e); provided, however, that anything in such clauses information contained therein or otherwise supplied to the contrary notwithstanding, Borrower may have a claim against Agent, and Agent may be liable to Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by Borrower which Borrower proves were caused by Agent's willful misconduct or gross negligence or Agent's willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of such Letter of Credit. In furtherance and not in limitation of the foregoing, Agent may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and Agent shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reasonHolder.

Role of Agent. Each Lender and Borrower agree that, in paying any drawing under a Letter of Credit, Agent shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of Agent, any Agent-of its Related Person Parties nor any of the respective correspondents, participants or assignees of Agent shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Letter of Credit Application. Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude Borrower's pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of Agent, any Agent-of its Related Person, Parties nor any of the respective correspondentscorrespondent, participants participant or assignees assignee of Agent, shall be liable or responsible for any of the matters described in clauses (i) through (v) of Section 2.03(e); provided, however, that anything in such clauses to the contrary notwithstanding, Borrower may have a claim against Agent, and Agent may be liable to Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by Borrower which Borrower proves were caused by Agent's willful misconduct or gross negligence or Agent's willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of such Letter of Credit. In furtherance and not in limitation of the foregoing, Agent may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and Agent shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.

Role of Agent. Each Lender and Borrower agree that, in paying any drawing under a Letter of Credit, Agent shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of Agent, any Agent-of its Related Person Parties nor any of the respective correspondents, participants or assignees of Agent shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Letter of Credit Application. Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude Borrower's ’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of Agent, any Agent-of its Related Person, Parties nor any of the respective correspondentscorrespondent, participants participant or assignees assignee of Agent, shall be liable or responsible for any of the matters described in clauses (i) through (v) of Section 2.03(e); provided, however, that anything in such clauses to the contrary notwithstanding, Borrower may have a claim against Agent, and Agent may be liable to Borrower, to the extent, but only to the extent, of any direct, direct damages (as opposed to consequential special, indirect, consequential, punitive or exemplaryexemplary damages, damages claims in respect of which are hereby waived by Borrower to the extent permitted by applicable law) suffered by Borrower which Borrower proves (as finally determined by a court of competent jurisdiction) were caused by Agent's ’s willful misconduct or gross negligence or Agent's willful ’s unlawful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of such Letter of Credit. The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of the Agent (as finally determined by a court of competent jurisdiction), the Agent shall be deemed to have exercised care in each such determination. In furtherance and not in limitation of the foregoing, Agent may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and Agent shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.

Role of Agent. Each Lender [CIBC: CIBC World Markets Corp. (the “Agent”) shall act as “agent” for Dealer within the meaning of Rule 15a-6 under the Exchange Act. The Agent is not a principal to this Confirmation and Borrower agree thatshall have no responsibility or liability to Counterparty in respect of this Confirmation or the Pricing Supplement for the Transaction entered into by Counterparty under this Confirmation, including, without limitation, in paying respect of the failure of Dealer to pay or perform under this Confirmation or the Pricing Supplement for the Transaction entered into by Counterparty under this Confirmation. Each of Dealer and Counterparty agrees to proceed solely against the other to collect or recover any drawing securities or money owing to it in connection with or as a result of this Confirmation or the Pricing Supplement for the Transaction entered into by Counterparty under a Letter of Credit, this Confirmation. The Agent shall not otherwise have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter no liability in respect of Credit) or to ascertain or inquire as to the validity or accuracy of any such document this Confirmation or the authority of Pricing Supplement for the Person executing Transaction entered into by Counterparty under this Confirmation, except for its gross negligence or delivering any such documentwillful misconduct in performing its duties as Agent hereunder or thereunder. None of AgentAs a broker-dealer registered with the Securities and Exchange Commission, any Agent-Related Person nor any of the respective correspondentsCIBC World Markets Corp., participants or assignees of Agent shall in its capacity as agent, will be liable to any Lender responsible for (i) any action taken or omitted effecting the Transaction contemplated in connection herewith at the request or with the approval of Lenders or the Required Lendersthis Confirmation, as applicable; (ii) any action taken issuing all required notices, confirmations and statements to Dealer and Counterparty and (iii) maintaining books and records relating to this Confirmation and the Pricing Supplement for the Transaction entered into by Counterparty under this Confirmation. ] [BMO: Each of Dealer and Counterparty acknowledges to and agrees with the other party hereto and to and with the Agent that (i) the Agent is acting as agent for Dealer under the Transaction pursuant to instructions from such party, (ii) the Agent is not a principal or omitted in party to the absence of gross negligence or willful misconduct; or Transaction, and may transfer its rights and obligations with respect to the Transaction, (iii) the due executionAgent shall have no responsibility, effectivenessobligation or liability, validity by way of issuance, guaranty endorsement or enforceability of otherwise in any document or instrument related to any Letter of Credit or Letter of Credit Application. Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee manner with respect to its use the performance of either party under the Transaction (including arising from any Letter of Credit; providedfailure by Dealer or Counterparty to pay or perform any obligation under the Transaction), however(iv) Dealer and the Agent have not given, that this assumption and Counterparty is not intended torelying (for purposes of making any investment decision or otherwise) upon, any statements, opinions or representations (whether written or oral) of Dealer or the Agent, other than the representations expressly set forth in this Confirmation or the Agreement, and shall not, preclude Borrower's pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of Agent, any Agent-Related Person, nor any of the respective correspondents, participants or assignees of Agent, shall be liable or responsible for any of the matters described in clauses (i) through (v) of Section 2.03(e); providedeach party agrees to proceed solely against the other party, however, that anything in such clauses to and not the contrary notwithstanding, Borrower may have a claim against Agent, and Agent may be liable to Borrower, to the extent, but only to the extent, of collect or recover any direct, as opposed to consequential money or exemplary, damages suffered by Borrower which Borrower proves were caused by Agent's willful misconduct or gross negligence or Agent's willful failure to pay under any Letter of Credit after the presentation securities owed to it by the beneficiary of a sight draft and certificate(s) strictly complying in connection with the terms Transaction. Each party hereto acknowledges and conditions agrees that the Agent is an intended third-party beneficiary hereunder. Counterparty acknowledges that the Agent is an affiliate of such Letter Dealer. Dealer will be acting for its own account in respect of Credit. In furtherance this Confirmation and not in limitation of the foregoing, Agent may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and Agent shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reasonTransaction contemplated hereunder.]]

Role of Agent. (a) Each Lender party agrees and Borrower agree thatacknowledges that Jxxxxxxxx & Company, in paying any drawing under a Letter Inc., an affiliate of CreditBorrower, Agent shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of Agent, any Agent-Related Person nor any of the respective correspondents, participants or assignees of Agent shall be liable to any Lender for will (i) act and has acted solely as agent and not as principal with respect to the Loans, and (ii) has no obligation or liability, by way of guaranty, endorsement or otherwise, in any manner in respect of the Loans (including, if applicable, in respect of the settlement thereof). Each of the Borrower and the Lender agrees it will look solely to the other party (or any guarantor in respect thereof) for performance of such other party’s obligations under the Loans. (b) Each party further agrees and acknowledges that the obligations of the Collateral Agent hereunder are only those expressly set forth in this Agreement. The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts. Neither the Collateral Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection herewith with this Agreement (i) with the consent or at the request of Lender or with the approval of Lenders or the Required Lenders, as applicable; (ii) in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine or to be signed by the proper party or parties. Lender shall indemnify the Collateral Agent against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s gross negligence or willful misconduct) that the Collateral Agent may suffer or incur in connection with this Agreement or any action taken or omitted by the Collateral Agent hereunder. Beyond the exercise of reasonable care in the absence of gross negligence custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or willful misconduct; control or (iii) in the due execution, effectiveness, validity possession or enforceability control of any document agent, bailee, clearing corporation or instrument related securities intermediary or any income thereon or as to the preservation of rights against prior parties or any Letter of Credit or Letter of Credit Applicationother rights pertaining thereto. Borrower hereby assumes all risks The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the acts or omissions of any beneficiary or transferee with respect Collateral if the Collateral is accorded treatment substantially equal to that which it accords its use of any Letter of Credit; provided, however, that this assumption is not intended toown property, and shall not, preclude Borrower's pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of Agent, any Agent-Related Person, nor any of the respective correspondents, participants or assignees of Agent, shall not be liable or responsible for any loss or damage to any of the matters described Collateral, or for any diminution in clauses (i) through (v) the value thereof, by reason of Section 2.03(e); provided, however, that anything in such clauses to the contrary notwithstanding, Borrower may have a claim against Agent, and Agent may be liable to Borrower, to the extent, but only to the extent, act or omission of any directagent, as opposed to consequential bailee, clearing corporation or exemplary, damages suffered by Borrower which Borrower proves were caused by Agent's willful misconduct or gross negligence or Agent's willful failure to pay under any Letter of Credit after the presentation to it securities intermediary selected by the beneficiary of a sight draft and certificate(s) strictly complying Collateral Agent in good faith (or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent or by any agent, bailee, clearing corporation or securities intermediary selected in accordance with the terms and conditions of such Letter of Credit. In furtherance and not in limitation of the foregoing, Agent may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and Agent shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reasonthis parenthetical phrase).

Role of Agent. [Alternative 1] [Each Lender of Dealer and Borrower agree that, in paying any drawing under a Letter of Credit, Counterparty acknowledges to and agrees with the other party hereto and to and with the Agent shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of Agent, any Agent-Related Person nor any of the respective correspondents, participants or assignees of Agent shall be liable to any Lender for that (i) the Agent is acting as agent for Dealer under the Transaction pursuant to instructions from Dealer, (ii) the Agent is not a principal or party to the Transaction, and may transfer its rights and obligations with respect to the Transaction, (iii) the Agent shall have no responsibility, obligation or liability, by way of issuance, guaranty, endorsement or otherwise in any action taken manner with respect to the performance of either party under the Transaction, (iv) Dealer and the Agent have not given, and Counterparty is not relying (for purposes of making any investment decision or omitted otherwise) upon, any statements, opinions or representations (whether written or oral) of Dealer or the Agent, other than the representations expressly set forth in this Confirmation or the Agreement, and (v) each party agrees to proceed solely against the other party, and not the Agent, to collect or recover any money or securities owed to it in connection herewith at the request or with the approval Transaction. Each party hereto acknowledges and agrees that the Agent is an intended third party beneficiary hereunder. Counterparty acknowledges that the Agent is an affiliate of Lenders or Dealer. Dealer will be acting for its own account in respect of this Confirmation (i) Neither Dealer nor Counterparty shall contact the Required Lenders, as applicableother with respect to any matter relating to the Transaction without the direct involvement of [Agent]; (ii) MS&CO, Dealer and Counterparty each hereby acknowledges that any action taken transactions by Dealer or omitted in the absence of gross negligence or willful misconduct[Agent] with respect to Shares will be undertaken by Dealer as principal for its own account; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Letter of Credit Application. Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee actions to be taken by Dealer and [Agent] in connection with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude Borrower's pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of Agent, any Agent-Related Person, nor any of the respective correspondents, participants or assignees of Agent, Transaction shall be liable taken by Dealer or responsible [Agent] independently and without any advance or subsequent consultation with Counterparty; and (iv) [Agent] is hereby authorized to act as agent for any of the matters described in clauses (i) through (v) of Section 2.03(e); provided, however, that anything in such clauses to the contrary notwithstanding, Borrower may have a claim against Agent, and Agent may be liable to Borrower, to the extent, but Counterparty only to the extent, extent required to satisfy the requirements of any direct, as opposed to consequential or exemplary, damages suffered by Borrower which Borrower proves were caused by Agent's willful misconduct or gross negligence or Agent's willful failure to pay Rule 15a-6 under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of such Letter of Credit. In furtherance and not Exchange Act in limitation respect of the foregoing, Agent may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and Agent shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reasonTransaction.]