Investment Agreement, dated December 22, 2022, by and between the Registrant and Batiste Investments LLC

Capital Amounts1

Investors’ Entitlement3

Payments5

Waiver of Right of Set-Off7

Covenants of Each Party7

Covenants of the Investors7

Covenants of the Counterparty7

Notice and Information Rights9

Representations and Warranties of Each Party10

Representations and Warranties of the Counterparty11

Failure to Pay or Deliver13

Failure to Discharge Claim Costs13

Breach or Repudiation13

Misrepresentation14

Bankruptcy14

Reorganization Without Assumption14

Available Remedies Generally14

Additional Remedy for Failure to Pay15

Additional Remedy for Failure to Discharge Claim Costs15

Remedies Cumulative15

Capital Amounts: Up to the lesser of (x) thirty million dollars (US$30,000,000) or (y) [***] percent ([***]%) of the Award (such amount, the “Maximum Commitment Amount”), to be deployed as follows:

three million five hundred thousand dollars (US$3,500,000) shall be provided to the payment account of the Counterparty set forth on Annex II within [***] Business Days of the Closing Date (the “Closing Capital Amount”);

provided the Threshold Recovery Condition has been satisfied, twenty-five percent (25%) of the Maximum Commitment Amount shall be provided to the payment account of the Counterparty within fifteen (15) Business Days of the issuance of an Award by the ICC tribunal considering the Claim (the “Post-Award Capital Amount”);

provided the Threshold Recovery Condition has been satisfied, up to [***] dollars (US$[***]) shall be provided for reasonable legal fees and costs associated with an Award confirmation process (the “Confirmation Capital Amounts”) and/or Award enforcement effort (the “Enforcement Capital Amounts”, and together with the Confirmation Capital Amount, the “Confirmation & Enforcement Capital Amounts”), subject to the following conditions:

Covington & Burling LLP (“Covington”) and Foley Hoag LLP (“Foley”) shall serve as the Counterparty’s initial counsel in connection with confirming the Award in the United States of America and Kobre & Kim LLP (“K&K”) shall serve as the Counterparty’s initial counsel in connection with all other litigation to enforce and monetize the Award, with any subsequent change to confirmation process counsel or enforcement counsel to be mutually agreed between Counterparty and Investors;

the Counterparty and the Investors have mutually approved in writing the respective estimated budgets for such confirmation and enforcement proceedings;

Confirmation & Enforcement Capital Amounts shall be provided by the Investors on behalf of the Counterparty directly to the payment account of the relevant counsel (using the wire information provided by such counsel to the Investors in writing) within [***] Business Days following receipt by the Investors of satisfactory invoices, but not more frequently than [***]; and

prior to the Enforcement Trigger Date, not more than [***] dollars (US$[***]) of Confirmation & Enforcement Capital Amounts shall be available to the Counterparty absent the Investors’ consent;

provided the Threshold Recovery Condition has been satisfied, an amount equal to the (x) Maximum Commitment Amount minus (y)(i) the Closing Capital Amount, (ii) the Post-Award Capital Amount, and (iii) US$[***] shall be provided to the payment account of the Counterparty in six (6) equal tranches beginning [***] after the date on which the Post-Award Capital Amount is due in accordance with Section 2.1(a)(ii) and every [***] thereafter until the earlier of (x) the [***]-year anniversary of the date on which the Post-Award Capital Amount is due in accordance with Section 2.1(a)(ii) or (y) such time as an Occurrence occurs (the “Subsequent Capital

Amounts”), subject to the following provisos:

the Counterparty may terminate the commitment of Investors to provide any given tranche of Subsequent Capital Amounts by written notice to the Investors provided not less than [***] days prior to the date upon which such Subsequent Capital Amount tranche is to be funded, whereupon such tranche of Subsequent Capital Amounts shall be removed from the Maximum Commitment Amount and not included among Subsequent Capital Amounts; and

for the avoidance of doubt, if [***].

Allocation of Funding.  Capital Amounts shall be provided in accordance with the following allocation:

Investor No. 1: [***]%

Investor No. 2: [***]%

Transaction Costs.  The Investors shall retain [***] percent ([***]%) of the Closing Capital Amount to cover their closing and other costs (the “Transaction Costs”).  

Commercial Viability.  Notwithstanding the foregoing, if any court of competent jurisdiction issues a ruling that, in the sole discretion of the Investors, has the effect of rendering the Claim not commercially viable, then the Investors may terminate their obligations with respect to any unfunded portion of the Capital Amounts and no Investors’ Entitlement shall be payable with respect to such unfunded Capital Amounts.

Investors’ Entitlement: The Investors’ Entitlement shall be the following to be paid first dollar after payment only of all Applicable Attorney Fees:

an amount equal to [***] plus

a return calculated on each tranche of Capital Amounts actually paid to or on behalf of the Counterparty by the Investors hereunder, equal to a multiple of such Capital Amount, as follows:

for the Closing Capital Amount, [***]x such Capital Amount;

for all Capital Amounts other than the Closing Capital Amount, if an Occurrence does not occur, then:

if the Investors’ Entitlement with respect to such Capital Amount is paid in full within [***] months of the Multiple Start Date applicable to such Capital Amount, [***]x such Capital Amount; or

if the Investors’ Entitlement with respect to such Capital Amount is paid in full on or after the [***]-month anniversary but before the [***]-month anniversary of the Multiple Start Date applicable to such Capital Amount, [***]x such Capital Amount; or

if the Investors’ Entitlement with respect to such Capital Amount is paid in full on or after the [***]-month anniversary but before the [***]-month anniversary of the Multiple Start Date applicable to such Capital Amount, [***]x such Capital Amount; or

if the Investors’ Entitlement with respect to such Capital Amount has not been paid in full before the [***]-month anniversary of the Multiple Start Date applicable to such Capital Amount, [***]x such Capital Amount; or

for all Capital Amounts other than the Closing Capital Amount, if and only if an Occurrence occurs, then:

if the Investors’ Entitlement with respect to such Capital Amount is paid in full before the [***]-month anniversary of the Multiple Start Date applicable to such Capital Amount, [***]x such Capital Amount; or

if the Investors’ Entitlement with respect to such Capital Amount has not been paid in full before the [***]-month anniversary of the Multiple Start Date applicable to such Capital Amount, [***]x such Capital Amount;

as to each tranche of Capital Amounts actually paid to or on behalf of the Counterparty by the Investors hereunder, a [***]% rate of

return, accruing daily and compounding annually, on the sum of such Capital Amount and its applicable return set forth in Section 2.2(a)(B), with such accrual beginning [***] months from the Multiple Start Date applicable to such Capital Amount and ending on the date that the Investors’ Entitlement with respect to such Capital Amount is paid in full.

Applications of Payments. The components of the Investors’ Entitlement shall be payable on a first-in, first-out basis such that payment of Proceeds shall be applied to the earliest deployed and unreturned Capital Amount first, next the second earliest deployed and unreturned Capital Amount, and so on. As to each Capital Amount, payment of Proceeds shall be applied as follows: (i) first, towards payment of the returns on the applicable Capital Amount as specified in clause (C) of Section 2.2(a); (ii) second, towards payment of the returns on the applicable Capital Amount, as specified in clause (B) of Section 2.2(a); and (iii) third, towards the repayment of the Invested Amount with respect to such Capital Amount as specified in clause (A) of Section 2.2(a). For the avoidance of doubt, in the event of a partial repayment of a Capital Amount, the outstanding portion of such Capital Amount shall continue to accrue its return by reference to its Multiple Start Date.

No Prepayment.  The Investors’ Entitlement may not be prepaid in whole or in part by the Counterparty without the Investors’ written consent.

Allocation of Entitlement.  Each Investor shall be entitled to a pro rata portion of the Investors’ Entitlement based on the Capital Amounts provided by it. In the event that there is an additional Investor added to this Agreement, such Investor shall be entitled to a portion of the Investors’ Entitlement as specified by the Investors at the time of such new Investor’s addition to this Agreement.

Non-Recourse Agreement.  For purposes of all references in this Agreement to payment of Proceeds for all or any portion of the Investors’ Entitlement, including all references to Proceeds in this Section 3.1(a), Proceeds shall mean, and be calculated as, Proceeds minus the amount of Proceeds used to pay all Applicable Attorney Fees. The Capital Amounts are provided to the Counterparty on a non-recourse basis, and the Investors’ Entitlement is derived and paid from (and capped at the total amount of) Proceeds.   Notwithstanding anything to the contrary in this Agreement, if there are no Proceeds, then the Counterparty shall not have an obligation to pay any portion of the Investors’ Entitlement (including any repayment of the Invested Amount) and the Investors’ Entitlement with respect to all Capital Amounts shall be [***] dollars (US$[***]); if Proceeds are less than the Investors’ Entitlement, then the Counterparty shall not have an obligation to pay the portion of the Investors’ Entitlement that exceeds Proceeds and the Investors’

Entitlement in aggregate with respect to all Capital Amounts shall equal the amount of Proceeds; provided, however, that if the Counterparty accepts a settlement offer made by the Adverse Party that resolves the Claim in an amount which does not permit the Investors to recover the Investors’ Entitlement (as calculated at the time of the Counterparty accepting the settlement offer) absent Investors’ prior written consent, then the Counterparty shall pay the Investors the difference between the full Investors’ Entitlement (as calculated at the time of the Counterparty accepting the settlement offer) and the amount of the settlement.

Payment and Delivery of Proceeds.  

Prior to the payment of any Proceeds to the Counterparty, the Counterparty shall direct the payor to remit such Proceeds not to the Counterparty but rather to the payment account of the Payment Agent set forth on Annex II, with proper endorsements if by check or other instrument.  

If Proceeds consist of property that is not freely transferable immediately available funds, then the Counterparty shall diligently take such actions as are necessary to (x) monetize such property in a commercially reasonable manner that has been approved by the Investors in their sole discretion (not to be unreasonably withheld, conditioned or delayed) and (y) cause the prompt payment of the Investors’ Entitlement from the cash realized from such monetization. Notwithstanding the foregoing, in the event Proceeds consist of property that is not freely transferable immediately available funds and can only be received or monetized by the Counterparty over a period of time which is greater than [***] months from the date such Proceeds arise, then the parties shall negotiate in good faith to establish commercially reasonable monetization and payment parameters and if the parties cannot agree, shall initiate an Expert Determination.

If, notwithstanding the foregoing, any Proceeds are instead received by the Counterparty or a third party other than the Payment Agent on the Counterparty’s behalf at any time when any portion of the Investors’ Entitlement remains unpaid, the Counterparty shall, or shall direct such third party to, (x) hold such Proceeds in trust for the benefit of the Investors; (y) segregate such Proceeds from all other funds and property; and (z) forthwith remit such Proceeds to the Payment Agent in accordance with clauses (i) and (ii) of this Section 3.1(b).

Due Date for Payment; Payment Mechanics. Except as otherwise set forth in Section 3.1(b)(ii), the Counterparty (directly or through the Payment Agent) shall pay Proceeds to the Investors in respect of the Investors’ Entitlement within [***] Business Days of the Counterparty’s (or the Payment Agent’s) receipt of such Proceeds. Payment of Proceeds received by the Counterparty or the Payment Agent that are cash shall be made in U.S. Dollars by wire transfer of freely transferable and immediately available funds to the payment accounts of the Investors specified

in writing. The rights of the Investors to receive the Investors’ Entitlement pursuant to this Agreement will terminate upon receipt thereof by the Investors.

it shall maintain its corporate existence, except to the extent that the failure to do so would not have a Material Adverse Effect;

it shall use all reasonable efforts to obtain and maintain in effect all consents, approvals, actions, authorizations, exceptions, notices, filings and registrations of or with any Governmental Authority that are required with respect to any Transaction Document; and

it shall comply with all applicable laws and orders of any Governmental Authority to which it may be subject if failure so to comply could reasonably be expected to have a Material Adverse Effect.

it is not, by virtue of entering into the Transaction Documents or otherwise, a party to any Claim;

without limiting the obligations of the Counterparty or the rights of the Investors under this Agreement, it is not entitled to control or direct the conduct of any Claim, or to require settlement thereof;

with respect to the Claim:

it shall use commercially reasonable efforts to: (A) pursue all of the Counterparty’s legal and equitable rights arising in connection with the Claim; and (B) bring about the reasonable monetization of the Claim through

a Claim Resolution (including, if so advised by the Nominated Lawyers, by mediating with the Adverse Party as a means of resolving the Claim prior to going to trial); and (C) collect and enforce any Claim Resolution.

it shall at its own expense (taking into account the Capital Amounts) and in a timely manner: (A) retain, remunerate and cooperate with the Nominated Lawyers to prosecute the Claim; (B) discharge all fees, expenses and other payment obligations necessarily or reasonably recommended or incurred in connection with the Claim; (C) use commercially reasonable efforts to collect and enforce any settlement, final judgment or award; (D) if applicable, discharge any obligation to pay adverse costs or post security for an adverse costs order or award (the costs and expenses of doing all of the foregoing described in clauses (A) – (D), “Claim Costs”); and (E) actively manage the incurrence of Claim Costs with the goal of achieving a Claim Resolution, and the collection and enforcement thereof, efficiently and cost-effectively;

it shall keep the Investors fully and promptly apprised of each material development in the Claim and direct the Nominated Lawyers to do the same; and it shall respond fully and promptly to any reasonable request from the Investors or a Representative of an Investor (which Representative, if requested by the Counterparty, shall be designated by the Investors in writing and, with respect to any information that the Counterparty reasonably considers material non-public information, subject to confidentiality and non-use obligations reasonably satisfactory to the Counterparty) for information regarding the Claim;

it shall not knowingly prejudice the Claim; and

other than Permitted Liens, it shall not Transfer any portion of the Claim or any Proceeds of the Claim; other than Permitted Liens, it shall not permit to exist any Adverse Interest with respect to any portion of the Claim or any Proceeds thereof; and it shall not set off or agree to set off any amounts against the Claim or any Proceeds of the Claim;

it shall at its sole cost maintain an effective, enforceable Payment Instruction Letter with the Payment Agent;

it shall not permit any amendments to the economic terms or scope of representation set forth in any Engagement Agreement without the Investors’ prior written consent; and

if the Nominated Lawyers cease to act as its legal counsel for any reason or if it needs to retain new legal counsel outside the scope of the Engagement Agreement(s) with the Nominated Lawyers, then it shall appoint successor attorneys or new attorneys who have a similar level of quality and reputation in the relevant field of practice as the Nominated Lawyers, subject to the Investors’ prior

written approval (not to be unreasonably withheld) of the choice of counsel and the economic terms of the appointment.  Upon the engagement of any new counsel, all references to “Nominated Lawyers” will be deemed to refer to and include such successor or additional counsel. The Counterparty will promptly deliver to the Investors a copy of the Engagement Agreement(s) with any successor or new attorney and Annex II shall be deemed updated to reflect such new Engagement Agreements without the necessity of a formal amendment to this Agreement. If pre-existing Nominated Lawyers were acting as Payment Agent prior to their replacement, then the Counterparty will (i) require as a condition of the replacement counsel’s engagement that such counsel agree to a Payment Instruction Letter and (ii) deliver a duly executed copy of such Payment Instruction Letter to the Investors immediately upon engaging such replacement counsel. The parties acknowledge and agree that, notwithstanding anything in this Agreement to the contrary, the Counterparty may terminate the engagement of any Nominated Lawyer at any time without the Investors’ consent.

The Counterparty shall promptly (and in any event within [***] Business Day) notify the Investors of:

any settlement offer made by an Adverse Party, in which case the Counterparty shall in good faith give the Investors an opportunity to discuss such settlement offer prior to accepting or rejecting it;

any Claim Resolution or any receipt of any Proceeds (including the amount of such Proceeds and the Claim to which such Proceeds relate), or of any event that is expected to generate a Claim Resolution or the receipt of any Proceeds; and

any Potential Remedy Event or Remedy Event or any event which could reasonably be expected to result in a Potential Remedy Event or Remedy Event.

Within the [***] Business Days following the end of each calendar month, the Counterparty shall itself, or cause the applicable Nominated Lawyers to, provide the Investors with a written or oral Monthly Report.

The Counterparty shall respond fully and promptly to any reasonable request by the Investors or a Representative of an Investor (which Representative, if requested by the Counterparty, shall be designated by the Investors in writing and, with respect to any information that the Counterparty reasonably considers material non-public information, subject to confidentiality and non-use obligations reasonably satisfactory to the Counterparty) for information regarding the financial condition, operations, business or prospects of the Counterparty.

it (i) is duly organized or formed and validly existing under the laws of the jurisdiction of its organization or formation and, if relevant under such laws, in good standing, (ii) is qualified to do business in each jurisdiction in which the nature of its business so requires, except where the failure to be so qualified could not reasonably be expected to result in a Material Adverse Effect, and (iii) has not filed any certificates of dissolution or liquidation, or any certificates of domestication, transfer or continuance in any jurisdiction;

it has the power to execute and deliver each Transaction Document to which it is a party and to perform its obligations under each Transaction Document to which it is a party; and it has taken all necessary action to authorize such execution, delivery and performance;

such execution, delivery and performance do not violate or conflict with any law applicable to it, any provision of its constitutional documents, any order or judgment of any court or other Governmental Authority applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets;

all consents, approvals, actions, authorizations, exceptions, notices, filings and registrations that are required to have been obtained by it with respect to the Transaction Documents to which it is a party have been obtained and are in full force and effect, and all conditions of any such consents, approvals, actions, authorizations, exceptions, notices, filings and registrations have been complied with;

the Transaction Documents to which it is a party constitute its legal, valid and binding obligations of such party, enforceable in accordance with their respective terms (subject to applicable bankruptcy, reorganization or similar laws and to general equitable principles); and

(i) it is acting for its own account and has made its own independent decision based on advice from its advisers in entering into the Transaction Documents to which it is a party; (ii) no communication received from any other party shall be deemed an assurance as to the expected results of the transactions contemplated hereby; (iii) explanations related to the terms and conditions of the Transaction Documents and the transactions contemplated hereby shall not be considered legal advice or a recommendation; and (iv) it has assessed (on its own behalf or through independent professional legal advice), understands and accepts the terms, conditions and risks of the Transaction Documents.

no Remedy Event or Potential Remedy Event has occurred and is continuing; no Remedy Event or Potential Remedy Event would occur as a result of its entering into or performing its obligations under the Transaction Documents;

except as set forth on Schedule 5.2(b), no litigation or other proceedings before any court or other Governmental Authority, official, tribunal or arbitrator that could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, have been commenced by or against the Counterparty or, to the Counterparty’s knowledge, are threatened against, the Counterparty;

it is not Insolvent; it is able to pay its debts when due and has no insolvency proceedings threatened or outstanding against it;

as of the date of this Agreement, it has entered into Engagement Agreement(s) with the Nominated Lawyers; true and complete copies of the Engagement Agreement(s) have been provided to the Investors and are set forth on Annex II;

with respect to the Claim:

(A) it is the sole legal and beneficial owner of, has good title to, and possesses sole control of, the Claim, free and clear of any Adverse Interest other than Permitted Liens; (B) it has not Transferred any portion of the Claim or any Proceeds thereof (other than in connection with Permitted Liens); (C) it has full power and authority and has obtained all necessary corporate and other authorizations to bring the Claim; (D) the security interest granted to the Investors under the Security Agreement is a legal, validly created, perfected, first priority security interest, subject to no other Adverse Interest other than Permitted Liens; and (E) it has not set off or agreed to set off and there exist no rights against the Counterparty that could permit any set-off of or counterclaim of any amounts against the Claim;

(A) as of the date of this Agreement, it has not received any payments in connection with the Claim, and (B) any payments in connection with the Claim received after the date of this Agreement have been disclosed to the Investors in accordance herewith;

it has and reasonably expects to continue to have sufficient assets (taking into account the Capital Amounts) available to discharge Claim Costs;

it has not taken or omitted to take any steps or executed or omitted to execute any documents which could reasonably be expected, either individually or in

the aggregate, to have a Material Adverse Effect; and it has disclosed to the Investors any facts or circumstances of which it is aware that could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect; and

it has disclosed to the Investors all information in its knowledge, possession or control that is or is likely to be material to the Investors’ assessment of the Claim (including the enforcement and collection of any related settlement, award or judgment); all information provided to the Investors in due diligence or otherwise has been provided in its true and complete form and is, to the knowledge of the Counterparty, accurate; the Counterparty believes that the Claim is meritorious; and the Counterparty has not been advised by the Nominated Lawyers or any other legal counsel or litigation funder that the Claim is unlikely to succeed;

it has not agreed to pay any compensation to any agent or broker in connection with the transactions contemplated by this Agreement; and

it is not materially overdue in the filing of any Tax return nor overdue in the payment of any material amount of Tax.

Other than its obligations to provide the Capital Amounts to the Counterparty, no Investor shall have any obligation to fund any penalties, costs orders, damages, fees, expenses or other sums (including any in respect of counterclaims) in relation to any Claim, and all such sums shall be the sole responsibility of the Counterparty.

The liability of each Investor under the Transaction Documents (and the transactions contemplated by the Transaction Documents) shall in no event exceed [***], except in the event of any fraud or reckless activity amounting to fraud perpetrated by such Investor. This limitation of liability is absolute and extends to each Investor and its Representatives.

To the extent any payment received by the Investors from or on behalf of the Counterparty, or obligation incurred by the Counterparty, is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be

repaid in whole or in part by the Investors or paid over to a trustee, receiver or any other entity, whether under any bankruptcy law, insolvency, fraudulent transfer law or otherwise (any such payment or obligation being hereinafter referred to as a “Challenged Item”), then the obligations of the Counterparty with respect to such Challenged Item shall (i) be fully reinstated and revived, as the case may be, notwithstanding such payment or incurrence, and (ii) to the extent of each such Challenged Item, remain effective and continue in full force and effect as if said Challenged Item had not occurred or been made.  The Counterparty shall indemnify the Investors on demand for all reasonable third-party costs and expenses incurred by the Investors in connection with defending, repaying and/or reviving a Challenged Item.

the Investors may terminate their commitment to provide Capital Amounts hereunder;

if the Remedy Event is continuing, the Investors may exercise their rights and remedies under the Security Agreement;

if the Remedy Event is continuing, the Investors may take actions that they deem necessary or advisable on behalf of the Counterparty in order to prosecute the Claim to which the Remedy Event relates and to bring about the monetization thereof and

to collect and enforce any settlement, final judgment or award; in connection therewith, the Counterparty hereby (i) irrevocably appoints Investor No. 1 as the Counterparty’s attorney-in-fact, with full authority in the place and stead of the Counterparty and in the name of the Counterparty or otherwise, from time to time following the date such Remedy Event has occurred and is continuing, in Investor No. 1’s discretion, to take any such actions to the extent consistent with the Counterparty’s interests in the Claim, including to settle or compromise the Claim or to appoint new Nominated Lawyers, and (ii) agrees to, and to cause its Affiliates and to use commercially reasonably efforts to cause its and their Representatives to, cooperate fully with the Investors and counsel in all matters pertaining to the Claim from time to time following the date such Remedy Event has occurred and is continuing; and  

if the Remedy Event is continuing, the Investors may pursue all other legal and equitable remedies available to the Investors under applicable law in connection with the enforcement of their rights under the Transaction Documents.

Except as otherwise expressly provided in any Transaction Document, each party shall bear its own expenses in connection with the negotiation, execution, delivery and performance of the Transaction Documents.

The Counterparty shall indemnify and hold harmless the Investors for all reasonable out-of-pocket expenses, including legal fees and disbursements (but not including taxes), incurred by the Investors in enforcing and protecting their rights under any Transaction Document.

Nothing in any Transaction Document is intended to create (i) a fiduciary, lawyer-client, lender-borrower, agency or other non-contractual relationship between the Counterparty and any Investor; (ii) any partnership, joint venture or any other type of affiliation between the Counterparty and any Investor; or (iii) a joint interest in any Claim for any purpose, including for U.S. federal, state and local income Tax purposes. The Investors are not partners, nor are they engaged in any partnership or joint venture with one another.

Investor No. 2 hereby appoints Investor No. 1 as administrative and collateral agent for the Investors hereunder.  As such, Investor No. 1 is hereby authorized to act on behalf of Investor No. 2 for the purpose of (i) giving and receiving notices, waivers, consents, approvals and instructions; (ii) acquiring, holding and enforcing any and all liens on collateral granted by the Counterparty to secure the Investors’ rights hereunder; (iii) enforcing any other rights of the Investors under any Transaction Document, including filing and proving a claim for the aggregate amount of the Counterparty’s obligations to the Investors hereunder in the event of any bankruptcy or insolvency proceeding relating to the Counterparty; and (iv) taking

such other actions as Investor No. 1 deems appropriate to administer the Transaction Documents; in each case together with such powers and discretion as are reasonably incidental thereto.  

The use of the term “agent” or any similar or equivalent term in connection with the foregoing appointment is not intended to imply any fiduciary or other duties arising under legal principles governing agency relationships.  Investor No. 1 shall not have any duties or obligations in its capacity as administrative and collateral agent except those expressly set forth herein, and its appointment and all rights and duties of it as an agent hereunder shall be ministerial and administrative in nature. Notwithstanding the appointment of Investor No. 1 as administrative and collateral agent, Investor No. 1 shall have the same rights and powers in its capacity as an Investor hereunder as Investor No. 2, and Investor No. 1 may exercise all such rights and powers as though it were not administrative or collateral agent.  The provisions of this Section 25 are for the benefit of the Investors; no other party shall have any rights as a third party beneficiary of any provision of this Section 25, provided that the Counterparty shall be entitled to rely on any notices, waivers, consents, approvals or instructions provided to it by Investor No. 1, or any action to be taken as described in clauses (ii) through (iv) in Section 25(a), as being on behalf of all the Investors.

Investor No. 1 may perform its duties and exercise its rights and powers as administrative and collateral agent hereunder by or through any one or more sub-agents or servicing entities appointed by it.  The exculpatory provisions in the following clause (d) shall apply to any such sub-agent or servicing entity.

Investor No. 1 shall not be liable to any other Investor for any action taken or not taken by it (i) with the consent or at the request of Investor No. 2, (ii) as Investor No. 1 believed in good faith was necessary under the circumstances or (iii) in the absence of its own gross negligence or willful misconduct.  In its capacity as administrative and collateral agent, Investor No. 1 shall be entitled to rely upon any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person.