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 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 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 documenteither party. 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) 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 [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 documenteither party. 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) 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 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 [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. 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 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-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 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) any action taken or omitted in connection herewith at the request or with Agent is acting as agent for Dealer under the approval of Lenders or the Required LendersTransaction pursuant to instructions from such party, as applicable; (ii) any action taken 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) 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 with the 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 Section 2.03(e); provided, however, Dealer. Dealer will be acting for its own account in respect of this Confirmation and the Transaction contemplated hereunder. Counterparty hereby agrees (a) to check this Confirmation carefully and immediately upon receipt so that anything errors or discrepancies can be promptly identified and rectified and (b) to confirm that the foregoing (in such clauses the exact form provided by Dealer) correctly sets forth the terms of the agreement between Dealer and Counterparty with respect to the contrary notwithstandingTransaction, Borrower may have a claim against Agent, and Agent may be liable by manually signing this Confirmation or this page hereof as evidence of agreement 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 such terms and conditions providing the other information requested herein and immediately returning an executed copy to Dealer. Very truly yours, BANK OF MONTREAL By: /s/ Roman Law Name: Roman Law Title: Authorized Signatory BMO CAPITAL MARKETS CORP., solely in its capacity as agent for Bank of such Letter of Credit. In furtherance Montreal By: /s/ Xxxx Xxxxx Name: Xxxx Xxxxx Title: Authorized Signatory By: /s/ Xxxxx Xxxxx Name: Xxxxx Xxxxx Title: Managing Director, Global Markets Accepted and not in limitation confirmed as 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.Trade Date: Wayfair Inc. By: /s/ Xxxxxxx Xxxxxxxx Authorized Signatory

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 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 documenteither party. 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) Neither Dealer nor Counterparty 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 Counterparty 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 Counterparty; and (iv) [Agent] is hereby authorized to act as agent for Counterparty 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 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 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 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. 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) any action taken or omitted in connection herewith at the request or with Agent is acting as agent for Dealer under the approval of Lenders or the Required LendersTransaction pursuant to instructions from such party, as applicable; (ii) any action taken 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) 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 with the 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 Section 2.03(e); provided, however, Dealer. Dealer will be acting for its own account in respect of this Confirmation and the Transaction contemplated hereunder. Counterparty hereby agrees (a) to check this Confirmation carefully and immediately upon receipt so that anything errors or discrepancies can be promptly identified and rectified and (b) to confirm that the foregoing (in such clauses the exact form provided by Dealer) correctly sets forth the terms of the agreement between Dealer and Counterparty with respect to the contrary notwithstandingTransaction, Borrower may have a claim against Agent, and Agent may be liable by manually signing this Confirmation or this page hereof as evidence of agreement 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 such terms and conditions providing the other information requested herein and immediately returning an executed copy to Dealer. Very truly yours, BANK OF MONTREAL By: /s/ Roman Law Name: Roman Law Title: Authorized Signatory BMO CAPITAL MARKETS CORP., solely in its capacity as agent for Bank of such Letter of Credit. In furtherance Montreal By: /s/ Xxxx Xxxxx Name: Xxxx Xxxxx Title: Authorized Signatory By: /s Xxxxx Xxxxx Name: Xxxxx Xxxxx Title: Managing Director, Global Markets Accepted and not in limitation confirmed as 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.Trade Date: Wayfair Inc. By: /s/ Xxxxxxx Xxxxxxxx Authorized Signatory

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.