Common use of Expenses and Indemnification Clause in Contracts

Expenses and Indemnification. If the Transactions are consummated and the Closing Date occurs, the Borrower shall pay all reasonable and documented or invoiced out-of-pocket costs and expenses of the ABL Administrative Agent, the Issuing Bank, the Swingline Bank and the ABL Arrangers (without duplication) associated with the syndication of the ABL Facility and the preparation, execution and delivery, administration, amendment, modification, waiver and/or enforcement of the ABL Documentation (limited, in the case of (i) legal fees and expenses, to the reasonable, documented and invoiced fees, disbursements and other charges of the one counsel identified herein and, if necessary, one firm of local counsel in each relevant material jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnified Parties (and, in the case of an actual conflict of interest, one additional conflicts counsel for the affected Indemnified Parties) and (ii) the fees and expenses of any other advisor or consultant, to the reasonable, documented and invoiced fees, disbursements and other charges of such advisor or consultant, but solely to the extent the Borrower has consented to the retention of such person (such consent not to be unreasonably withheld or delayed)). The Borrower will indemnify the ABL Administrative Agent, the ABL Arranger, the ABL Lenders and their affiliates, and their officers, directors, employees, advisors, agents, controlling persons and other representatives and the successors and permitted assigns of each of the foregoing (collectively, the “Indemnified Parties” and each individually, an “Indemnified Party”), and hold them harmless from and against all losses, claims, damages, liabilities and reasonable and documented or invoiced out-of-pocket fees and expenses (limited, in the case of (i) legal fees and expenses, to the reasonable, documented and invoiced fees, disbursements and other charges of one counsel for all Indemnified Parties and, if necessary, one firm of local counsel in each relevant material jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnified Parties (and, in the case of an actual conflict of interest, one additional conflicts counsel for the affected Indemnified Parties) and (ii) the fees and expenses of any other advisor or consultant, to the reasonable, documented and invoiced fees, disbursements and other charges of such advisor or consultant, but solely to the extent the Borrower has consented to the retention of such person (such consent not to be unreasonably withheld or delayed)) of any such Indemnified Party arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnified Party is a party thereto and whether or not such proceedings are brought by the Borrower, its equity holders, its affiliates, creditors or any other third person) that relates to the Transactions, including the financing contemplated hereby; provided that no Indemnified Party will be indemnified for any loss, claim, damage, liability, cost or expense to the extent it has resulted from (i) the gross negligence, bad faith or willful misconduct of such party or any of its affiliates or controlling persons or any of the officers, directors, employees, agents, advisors, or members of any of the foregoing (as determined by a court of competent jurisdiction in a final and non-appealable decision), (ii) a material breach by any such person or one of its affiliates (as determined by a court of competent jurisdiction in a final and non-appealable decision) or (iii) disputes between and among Indemnified Parties (other than in connection with an Indemnified Party acting in its capacity as an ABL Arrangers or ABL Administrative Agent or any other agent or co-agent (if any) designated by an ABL Arranger, in each case acting in their respective capacities as such) that do not involve an act or omission by the Borrower or its Restricted Subsidiaries. Notwithstanding any other provision herein, no party hereto nor any affiliate of any party hereto, nor any officer, director, employee, agent, controlling person, advisor or other representative of the foregoing or any successor or permitted assign of any of the foregoing shall be liable for any indirect, special, punitive or consequential damages (including, without limitation, any loss of profits, business or anticipated savings) in connection with the Term Sheets, the Fee Letter, the Facilities Documentation, the Transactions (including the Facilities and the use of proceeds thereunder), or with respect to any activities related to the Facilities, including the preparation of this Commitment Letter, the Fee Letter and the Facilities Documentation; provided that nothing contained in this sentence shall limit your indemnity and reimbursement obligations to the extent set forth in the immediately preceding paragraph in respect of any third party claims alleging such indirect, special, punitive or consequential damages in connection with which such Indemnified Party is entitled to indemnification hereunder. Notwithstanding the foregoing, each Indemnified Party will be obligated to refund and return promptly any and all amounts paid by you under the immediately preceding paragraph to the extent it has been determined by a court of competent jurisdiction in a final and non-appealable decision that such Indemnified Party is not entitled to payment of such amounts in accordance with the terms hereof. The Borrower shall not be liable for any settlement of any claim, litigation, investigation or proceeding effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with the Borrower’s written consent in any such claim, litigation, investigation or proceeding, the Borrower agrees to indemnify and hold harmless each Indemnified Party from and against any and all losses, claims, damages, liabilities and expenses by reason of such settlement in accordance with the preceding paragraph. The Borrower shall not, without the prior written consent of the applicable Indemnified Party (which consent shall not be unreasonably withheld, delayed or conditioned), effect any settlement of any pending or threatened claim, litigation, investigation or proceeding in respect of which indemnity could have been sought hereunder by such Indemnified Party unless (a) such settlement includes a full and unconditional release of such Indemnified Party in form and substance reasonably satisfactory to such Indemnified Party from all liability on claims that are the subject matter of such claim, litigation, investigation or proceeding and (b) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of such Indemnified Party. In case any claim, litigation, investigation or proceeding is instituted involving any Indemnified Party for which indemnification is to be sought hereunder by such Indemnified Party, then such Indemnified Party will promptly notify the Borrower of the commencement of any such claim, litigation, investigation or proceeding; provided, however, that the failure to so notify the Borrower will not relieve the Borrower from any liability that it may have to such Indemnified Party pursuant to this “Expenses and Indemnification” section or from any liability that the Borrower may have to such Indemnified Party other than pursuant to this “Expenses and Indemnification” section, except to the extent that the Borrower is materially prejudiced by such failure. In connection with any one claim, litigation, investigation or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm for all Indemnified Parties plus additional conflicts and local counsel as provided herein. Governing Law and Forum: New York. Counsel to the ABL Administrative Agent and ABL Arrangers: Xxxxxx Xxxxxx & Xxxxxxx LLP. Interest Rates: Initially, from and after the Closing Date until the last day of the first full fiscal quarter ending after the Closing Date, the interest rates under the ABL Facility will be Adjusted LIBOR plus 1.50% for Adjusted LIBOR Loans or ABR plus 0.50% for ABR Loans, and then on the first day of each fiscal quarter thereafter (the “Adjustment Date”), the applicable margin under the ABL Facility will be determined from the pricing grid below based on the Average Excess Availability for the fiscal quarter ending immediately prior to such Adjustment Date. Average Excess Availability Applicable Margin for Adjusted LIBOR Loans Applicable Margin for ABR Loans Greater than or equal to 66.67% of the Line Cap 1.25 % 0.25 % Greater than or equal to 33.33% of the Line Cap but less than 66.67% of the Line Cap 1.50 % 0.50 % Less than 33.33% of the Line Cap 1.75 % 0.75 % All Swingline Loans shall be ABR Loans. The Borrower may elect interest periods of 1, 2, 3 or 6 months (or, if agreed by all relevant ABL Lenders, 12 months) for Adjusted LIBOR borrowings. Calculation of interest shall be on the basis of the actual days elapsed in a year of 360 days (or 365 or 366 days, as the case may be, in the case of ABR loans). Interest shall be payable in arrears (a) for loans accruing interest at a rate based on Adjusted LIBOR, at the end of each interest period and, for interest periods of greater than 3 months, every 3 months, and on the applicable maturity date and (b) for loans accruing interest based on the ABR, quarterly in arrears and on the applicable maturity date. ABR is the Alternate Base Rate, which is the highest of (i) the ABL Administrative Agent’s “prime rate”, (ii) the Federal Funds Effective Rate plus 1/2 of 1.00% and (iii) the one-month Adjusted LIBOR rate plus 1.00% per annum. Adjusted LIBOR is the highest of (i) the London interbank offered rate for dollars, adjusted for statutory reserve requirements and (ii) 0%. Letter of Credit Fee: A per annum fee equal to the spread over Adjusted LIBOR under the ABL Facility will accrue on the aggregate face amount of outstanding letters of credit under the ABL Facility, payable in arrears at the end of each quarter after the Closing Date and upon the termination of the respective letter of credit, in each case for the actual number of days elapsed over a 360-day year. Such fees shall be distributed to the ABL Lenders pro rata in accordance with the amount of each such Lender’s ABL Facility commitment, with exceptions for defaulting Lenders. In addition, the Borrower shall pay to each Issuing Bank, for its own account, (a) a fronting fee equal to a percentage per annum to be agreed upon not to exceed 0.125% per annum of the aggregate face amount of outstanding letters of credit, payable in arrears at the end of each quarter after the Closing Date and upon the termination of the ABL Facility, calculated based upon the actual number of days elapsed over a 360-day year, and (b) customary issuance and administration fees.

Expenses and Indemnification. If the Transactions are consummated and the Closing Date occursYou agree (a) to pay or reimburse, the Borrower shall pay all reasonable and documented or invoiced reasonable, out-of-pocket fees, costs, and expenses (including, without limitation, reasonable fees and disbursements of counsel, reasonable consultant costs and expenses, filing and recording fees, and costs and expenses of the ABL Administrative Agent, the Issuing Bank, the Swingline Bank and the ABL Arrangers (without duplication) associated with due diligence, travel, appraisals, valuations, and audits) (the syndication “Expenses”) incurred by or on behalf of the ABL Facility and WFF and/or CapSource in connection with (i) the preparation, execution negotiation, execution, and deliverydelivery of this Sixth Amended and Restated Commitment Letter, administrationthe Sixth Amended and Restated Term Sheet, amendmentthe Fifth Amended and Restated Commitment Letter, modificationthe Fifth Amended and Restated Term Sheet, waiver and/or enforcement of the ABL Documentation (limitedFourth Amended and Restated Commitment Letter, in the case of (i) legal fees Fourth Amended and expensesRestated Term Sheet, to the reasonableThird Amended and Restated Commitment Letter, documented the Third Amended and invoiced feesRestated Term Sheet, disbursements the Second Amended and other charges of Restated Commitment Letter, the one counsel identified herein andSecond Amended and Restated Term Sheet, if necessarythe Amended and Restated Commitment Letter, one firm of local counsel in each relevant material jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for the Amended and Restated Term Sheet, the Original Commitment Letter, the Original Term Sheet, and any and all Indemnified Parties (and, in the case of an actual conflict of interest, one additional conflicts counsel documentation for the affected Indemnified Parties) Facility, and (ii) the fees and expenses enforcement of any other advisor of WFF’s or consultantCapSource’s rights and remedies under this Sixth Amended and Restated Commitment Letter in each case irrespective of whether the Transaction is consummated, and (b) to the reasonableindemnify, documented defend, and invoiced feeshold harmless WFF, disbursements and other charges CapSource, each of such advisor or consultant, but solely to the extent the Borrower has consented to the retention of such person (such consent not to be unreasonably withheld or delayed)). The Borrower will indemnify the ABL Administrative Agent, the ABL Arranger, the ABL Lenders and their respective affiliates, and their officers, directors, employees, advisors, agents, controlling persons and other representatives and the successors and permitted assigns of each of the foregoing (collectively, the “Indemnified Parties” and each individually, an “Indemnified Party”), and hold them harmless from and against all losses, claims, damages, liabilities and reasonable and documented or invoiced out-of-pocket fees and expenses (limited, in the case of (i) legal fees and expenses, to the reasonable, documented and invoiced fees, disbursements and other charges of one counsel for all Indemnified Parties and, if necessary, one firm of local counsel in each relevant material jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnified Parties (and, in the case of an actual conflict of interest, one additional conflicts counsel for the affected Indemnified Parties) and (ii) the fees and expenses of any other advisor or consultant, to the reasonable, documented and invoiced fees, disbursements and other charges of such advisor or consultant, but solely to the extent the Borrower has consented to the retention of such person (such consent not to be unreasonably withheld or delayed)) of any such Indemnified Party arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnified Party is a party thereto and whether or not such proceedings are brought by the Borrower, its equity holders, its affiliates, creditors or any other third person) that relates to the Transactions, including the financing contemplated hereby; provided that no Indemnified Party will be indemnified for any loss, claim, damage, liability, cost or expense to the extent it has resulted from (i) the gross negligence, bad faith or willful misconduct of such party or any of its affiliates or controlling persons or any of the their officers, directors, employees, agents, advisors, or members attorneys, and representatives (each, an “Indemnified Person”) as set forth on Exhibit A hereto. WFF agrees to provide telephonic updates as to the estimated accrued amount of any Expenses from time to time at the request of Sponsor. WFF and Sponsor hereby agree that (a) the foregoing letter agreement, dated as of May 11, 2009, by and between WFF and Sponsor relating to expense reimbursement is hereby terminated; and (as determined by a court b) the reimbursement of competent jurisdiction in a final all out-of-pocket fees, costs, and non-appealable decision), (ii) a material breach by any such person or one of its affiliates (as determined by a court of competent jurisdiction in a final and non-appealable decision) or (iii) disputes between and among Indemnified Parties (other than in connection with an Indemnified Party acting in its capacity as an ABL Arrangers or ABL Administrative Agent or any other agent or co-agent (if any) designated by an ABL Arranger, in each case acting in their respective capacities as such) that do not involve an act or omission by the Borrower or its Restricted Subsidiaries. Notwithstanding any other provision herein, no party hereto nor any affiliate of any party hereto, nor any officer, director, employee, agent, controlling person, advisor or other representative of the foregoing or any successor or permitted assign of any of the foregoing shall be liable for any indirect, special, punitive or consequential damages expenses (including, without limitation, any loss reasonable fees and disbursements of profitscounsel, business or anticipated savingsreasonable consultant costs and expenses, filing and recording fees, and costs and expenses associated with due diligence, travel, appraisals, valuations, and audits) in connection with the Term Sheetsincurred by WFF prior to, the Fee Letter, the Facilities Documentation, the Transactions (including the Facilities and the use of proceeds thereunder)or, or with respect to any activities related to after the Facilities, including date hereof shall be governed by the preparation terms of this Sixth Amended and Restated Commitment Letter, the Fee Letter and the Facilities Documentation; provided that nothing contained in this sentence shall limit your indemnity and reimbursement obligations to the extent set forth in the immediately preceding paragraph in respect of any third party claims alleging such indirect, special, punitive or consequential damages in connection with which such Indemnified Party is entitled to indemnification hereunder. Notwithstanding the foregoing, each Indemnified Party will be obligated to refund and return promptly any and all amounts paid by you under the immediately preceding paragraph to the extent it has been determined by a court of competent jurisdiction in a final and non-appealable decision that such Indemnified Party is not entitled to payment of such amounts in accordance with the terms hereof. The Borrower shall not be liable for any settlement of any claim, litigation, investigation or proceeding effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with the Borrower’s written consent in any such claim, litigation, investigation or proceeding, the Borrower agrees to indemnify and hold harmless each Indemnified Party from and against any and all losses, claims, damages, liabilities and expenses by reason of such settlement in accordance with the preceding paragraph. The Borrower shall not, without the prior written consent of the applicable Indemnified Party (which consent shall not be unreasonably withheld, delayed or conditioned), effect any settlement of any pending or threatened claim, litigation, investigation or proceeding in respect of which indemnity could have been sought hereunder by such Indemnified Party unless (a) such settlement includes a full and unconditional release of such Indemnified Party in form and substance reasonably satisfactory to such Indemnified Party from all liability on claims that are the subject matter of such claim, litigation, investigation or proceeding and (b) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of such Indemnified Party. In case any claim, litigation, investigation or proceeding is instituted involving any Indemnified Party for which indemnification is to be sought hereunder by such Indemnified Party, then such Indemnified Party will promptly notify the Borrower of the commencement of any such claim, litigation, investigation or proceeding; provided, however, that the failure to so notify the Borrower will not relieve the Borrower from any liability that it may have to such Indemnified Party pursuant to this “Expenses and Indemnification” section or from any liability that the Borrower may have to such Indemnified Party other than pursuant to this “Expenses and Indemnification” section, except to the extent that the Borrower is materially prejudiced by such failure. In connection with any one claim, litigation, investigation or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm for all Indemnified Parties plus additional conflicts and local counsel as provided herein. Governing Law and Forum: New York. Counsel to the ABL Administrative Agent and ABL Arrangers: Xxxxxx Xxxxxx & Xxxxxxx LLP. Interest Rates: Initially, from and after the Closing Date until the last day of the first full fiscal quarter ending after the Closing Date, the interest rates under the ABL Facility will be Adjusted LIBOR plus 1.50% for Adjusted LIBOR Loans or ABR plus 0.50% for ABR Loans, and then on the first day of each fiscal quarter thereafter (the “Adjustment Date”), the applicable margin under the ABL Facility will be determined from the pricing grid below based on the Average Excess Availability for the fiscal quarter ending immediately prior to such Adjustment Date. Average Excess Availability Applicable Margin for Adjusted LIBOR Loans Applicable Margin for ABR Loans Greater than or equal to 66.67% of the Line Cap 1.25 % 0.25 % Greater than or equal to 33.33% of the Line Cap but less than 66.67% of the Line Cap 1.50 % 0.50 % Less than 33.33% of the Line Cap 1.75 % 0.75 % All Swingline Loans shall be ABR Loans. The Borrower may elect interest periods of 1, 2, 3 or 6 months (or, if agreed by all relevant ABL Lenders, 12 months) for Adjusted LIBOR borrowings. Calculation of interest shall be on the basis of the actual days elapsed in a year of 360 days (or 365 or 366 days, as the case may be, in the case of ABR loans). Interest shall be payable in arrears (a) for loans accruing interest at a rate based on Adjusted LIBOR, at the end of each interest period and, for interest periods of greater than 3 months, every 3 months, and on the applicable maturity date and (b) for loans accruing interest based on the ABR, quarterly in arrears and on the applicable maturity date. ABR is the Alternate Base Rate, which is the highest of (i) the ABL Administrative Agent’s “prime rate”, (ii) the Federal Funds Effective Rate plus 1/2 of 1.00% and (iii) the one-month Adjusted LIBOR rate plus 1.00% per annum. Adjusted LIBOR is the highest of (i) the London interbank offered rate for dollars, adjusted for statutory reserve requirements and (ii) 0%. Letter of Credit Fee: A per annum fee equal to the spread over Adjusted LIBOR under the ABL Facility will accrue on the aggregate face amount of outstanding letters of credit under the ABL Facility, payable in arrears at the end of each quarter after the Closing Date and upon the termination of the respective letter of credit, in each case for the actual number of days elapsed over a 360-day year. Such fees shall be distributed to the ABL Lenders pro rata in accordance with the amount of each such Lender’s ABL Facility commitment, with exceptions for defaulting Lenders. In addition, the Borrower shall pay to each Issuing Bank, for its own account, (a) a fronting fee equal to a percentage per annum to be agreed upon not to exceed 0.125% per annum of the aggregate face amount of outstanding letters of credit, payable in arrears at the end of each quarter after the Closing Date and upon the termination of the ABL Facility, calculated based upon the actual number of days elapsed over a 360-day year, and (b) customary issuance and administration fees.

Expenses and Indemnification. If the Transactions are consummated and the Closing Date occursYou agree (a) to pay or reimburse, the Borrower shall pay all reasonable and documented or invoiced reasonable, out-of-pocket fees, costs, and expenses (including, without limitation, reasonable fees and disbursements of counsel, reasonable consultant costs and expenses, filing and recording fees, and costs and expenses of the ABL Administrative Agent, the Issuing Bank, the Swingline Bank and the ABL Arrangers (without duplication) associated with due diligence, travel, appraisals, valuations, and audits) (the syndication “Expenses”) incurred by or on behalf of the ABL Facility and WFF and/or CapSource in connection with (i) the preparation, execution negotiation, execution, and deliverydelivery of this Commitment Letter, administrationthe Term Sheet, amendment, modification, waiver and/or enforcement of the ABL Documentation (limited, in the case of (i) legal fees and expenses, to the reasonable, documented any and invoiced fees, disbursements and other charges of the one counsel identified herein and, if necessary, one firm of local counsel in each relevant material jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnified Parties (and, in the case of an actual conflict of interest, one additional conflicts counsel documentation for the affected Indemnified Parties) Facility, and (ii) the fees and expenses enforcement of any other advisor of WFF’s or consultantCapSource’s rights and remedies under this Commitment Letter in each case irrespective of whether the Transaction is consummated, and (b) to the reasonableindemnify, documented defend, and invoiced feeshold harmless WFF, disbursements and other charges CapSource, each of such advisor or consultant, but solely to the extent the Borrower has consented to the retention of such person (such consent not to be unreasonably withheld or delayed)). The Borrower will indemnify the ABL Administrative Agent, the ABL Arranger, the ABL Lenders and their respective affiliates, and their officers, directors, employees, advisors, agents, controlling persons and other representatives and the successors and permitted assigns of each of the foregoing (collectively, the “Indemnified Parties” and each individually, an “Indemnified Party”), and hold them harmless from and against all losses, claims, damages, liabilities and reasonable and documented or invoiced out-of-pocket fees and expenses (limited, in the case of (i) legal fees and expenses, to the reasonable, documented and invoiced fees, disbursements and other charges of one counsel for all Indemnified Parties and, if necessary, one firm of local counsel in each relevant material jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnified Parties (and, in the case of an actual conflict of interest, one additional conflicts counsel for the affected Indemnified Parties) and (ii) the fees and expenses of any other advisor or consultant, to the reasonable, documented and invoiced fees, disbursements and other charges of such advisor or consultant, but solely to the extent the Borrower has consented to the retention of such person (such consent not to be unreasonably withheld or delayed)) of any such Indemnified Party arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnified Party is a party thereto and whether or not such proceedings are brought by the Borrower, its equity holders, its affiliates, creditors or any other third person) that relates to the Transactions, including the financing contemplated hereby; provided that no Indemnified Party will be indemnified for any loss, claim, damage, liability, cost or expense to the extent it has resulted from (i) the gross negligence, bad faith or willful misconduct of such party or any of its affiliates or controlling persons or any of the their officers, directors, employees, agents, advisors, or members attorneys, and representatives (each, an “Indemnified Person”) as set forth on Exhibit A hereto. WFF agrees to provide telephonic updates as to the estimated accrued amount of any Expenses from time to time at the request of Sponsor. WFF and Sponsor hereby agree that (a) the foregoing letter agreement, dated as of May 11, 2009, by and between WFF and Sponsor relating to expense reimbursement is hereby terminated; and (as determined by a court b) the reimbursement of competent jurisdiction in a final all out-of-pocket fees, costs, and non-appealable decision), (ii) a material breach by any such person or one of its affiliates (as determined by a court of competent jurisdiction in a final and non-appealable decision) or (iii) disputes between and among Indemnified Parties (other than in connection with an Indemnified Party acting in its capacity as an ABL Arrangers or ABL Administrative Agent or any other agent or co-agent (if any) designated by an ABL Arranger, in each case acting in their respective capacities as such) that do not involve an act or omission by the Borrower or its Restricted Subsidiaries. Notwithstanding any other provision herein, no party hereto nor any affiliate of any party hereto, nor any officer, director, employee, agent, controlling person, advisor or other representative of the foregoing or any successor or permitted assign of any of the foregoing shall be liable for any indirect, special, punitive or consequential damages expenses (including, without limitation, any loss reasonable fees and disbursements of profitscounsel, business or anticipated savingsreasonable consultant costs and expenses, filing and recording fees, and costs and expenses associated with due diligence, travel, appraisals, valuations, and audits) in connection with the Term Sheetsincurred by WFF prior to, the Fee Letter, the Facilities Documentation, the Transactions (including the Facilities and the use of proceeds thereunder)or, or with respect to any activities related to after the Facilities, including date hereof shall be governed by the preparation terms of this Commitment Letter, the Fee Letter and the Facilities Documentation; provided that nothing contained in this sentence shall limit your indemnity and reimbursement obligations to the extent set forth in the immediately preceding paragraph in respect of any third party claims alleging such indirect, special, punitive or consequential damages in connection with which such Indemnified Party is entitled to indemnification hereunder. Notwithstanding the foregoing, each Indemnified Party will be obligated to refund and return promptly any and all amounts paid by you under the immediately preceding paragraph to the extent it has been determined by a court of competent jurisdiction in a final and non-appealable decision that such Indemnified Party is not entitled to payment of such amounts in accordance with the terms hereof. The Borrower shall not be liable for any settlement of any claim, litigation, investigation or proceeding effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with the Borrower’s written consent in any such claim, litigation, investigation or proceeding, the Borrower agrees to indemnify and hold harmless each Indemnified Party from and against any and all losses, claims, damages, liabilities and expenses by reason of such settlement in accordance with the preceding paragraph. The Borrower shall not, without the prior written consent of the applicable Indemnified Party (which consent shall not be unreasonably withheld, delayed or conditioned), effect any settlement of any pending or threatened claim, litigation, investigation or proceeding in respect of which indemnity could have been sought hereunder by such Indemnified Party unless (a) such settlement includes a full and unconditional release of such Indemnified Party in form and substance reasonably satisfactory to such Indemnified Party from all liability on claims that are the subject matter of such claim, litigation, investigation or proceeding and (b) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of such Indemnified Party. In case any claim, litigation, investigation or proceeding is instituted involving any Indemnified Party for which indemnification is to be sought hereunder by such Indemnified Party, then such Indemnified Party will promptly notify the Borrower of the commencement of any such claim, litigation, investigation or proceeding; provided, however, that the failure to so notify the Borrower will not relieve the Borrower from any liability that it may have to such Indemnified Party pursuant to this “Expenses and Indemnification” section or from any liability that the Borrower may have to such Indemnified Party other than pursuant to this “Expenses and Indemnification” section, except to the extent that the Borrower is materially prejudiced by such failure. In connection with any one claim, litigation, investigation or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm for all Indemnified Parties plus additional conflicts and local counsel as provided herein. Governing Law and Forum: New York. Counsel to the ABL Administrative Agent and ABL Arrangers: Xxxxxx Xxxxxx & Xxxxxxx LLP. Interest Rates: Initially, from and after the Closing Date until the last day of the first full fiscal quarter ending after the Closing Date, the interest rates under the ABL Facility will be Adjusted LIBOR plus 1.50% for Adjusted LIBOR Loans or ABR plus 0.50% for ABR Loans, and then on the first day of each fiscal quarter thereafter (the “Adjustment Date”), the applicable margin under the ABL Facility will be determined from the pricing grid below based on the Average Excess Availability for the fiscal quarter ending immediately prior to such Adjustment Date. Average Excess Availability Applicable Margin for Adjusted LIBOR Loans Applicable Margin for ABR Loans Greater than or equal to 66.67% of the Line Cap 1.25 % 0.25 % Greater than or equal to 33.33% of the Line Cap but less than 66.67% of the Line Cap 1.50 % 0.50 % Less than 33.33% of the Line Cap 1.75 % 0.75 % All Swingline Loans shall be ABR Loans. The Borrower may elect interest periods of 1, 2, 3 or 6 months (or, if agreed by all relevant ABL Lenders, 12 months) for Adjusted LIBOR borrowings. Calculation of interest shall be on the basis of the actual days elapsed in a year of 360 days (or 365 or 366 days, as the case may be, in the case of ABR loans). Interest shall be payable in arrears (a) for loans accruing interest at a rate based on Adjusted LIBOR, at the end of each interest period and, for interest periods of greater than 3 months, every 3 months, and on the applicable maturity date and (b) for loans accruing interest based on the ABR, quarterly in arrears and on the applicable maturity date. ABR is the Alternate Base Rate, which is the highest of (i) the ABL Administrative Agent’s “prime rate”, (ii) the Federal Funds Effective Rate plus 1/2 of 1.00% and (iii) the one-month Adjusted LIBOR rate plus 1.00% per annum. Adjusted LIBOR is the highest of (i) the London interbank offered rate for dollars, adjusted for statutory reserve requirements and (ii) 0%. Letter of Credit Fee: A per annum fee equal to the spread over Adjusted LIBOR under the ABL Facility will accrue on the aggregate face amount of outstanding letters of credit under the ABL Facility, payable in arrears at the end of each quarter after the Closing Date and upon the termination of the respective letter of credit, in each case for the actual number of days elapsed over a 360-day year. Such fees shall be distributed to the ABL Lenders pro rata in accordance with the amount of each such Lender’s ABL Facility commitment, with exceptions for defaulting Lenders. In addition, the Borrower shall pay to each Issuing Bank, for its own account, (a) a fronting fee equal to a percentage per annum to be agreed upon not to exceed 0.125% per annum of the aggregate face amount of outstanding letters of credit, payable in arrears at the end of each quarter after the Closing Date and upon the termination of the ABL Facility, calculated based upon the actual number of days elapsed over a 360-day year, and (b) customary issuance and administration fees.

Expenses and Indemnification. If the Transactions are consummated and the Closing Date occurs, the Borrower (a) Mortgagor shall pay when due and payable, and upon request by Mortgagee shall reimburse Mortgagee for, all commercially reasonable appraisal fees, recording fees, taxes, brokerage fees and documented or invoiced out-of-pocket commissions, abstract and search fees, title insurance fees and premiums, escrow fees, attorneys' fees, court costs, fees of inspecting architect(s) and engineer(s) and all other reasonable costs and expenses of the ABL Administrative Agentwhich have been incurred, the Issuing Bankor which hereafter may be incurred, the Swingline Bank and the ABL Arrangers by Mortgagee in connection with: (without duplicationi) associated with the syndication of the ABL Facility and the preparation, execution and delivery, administration, amendment, modification, waiver and/or enforcement recording of this Mortgage and the ABL Documentation (limited, in the case of (i) legal fees and expenses, to the reasonable, documented and invoiced fees, disbursements and other charges of the one counsel identified herein and, if necessary, one firm of local counsel in each relevant material jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnified Parties (and, in the case of an actual conflict of interest, one additional conflicts counsel for the affected Indemnified Parties) and Loan Documents; (ii) after the fees and expenses occurrence of any other advisor or consultantEvent of Default, to the reasonable, documented and invoiced fees, disbursements and other charges preparation for enforcement of such advisor or consultant, but solely to the extent the Borrower has consented to the retention of such person (such consent not to be unreasonably withheld or delayed)). The Borrower will indemnify the ABL Administrative Agent, the ABL Arranger, the ABL Lenders and their affiliates, and their officers, directors, employees, advisors, agents, controlling persons and other representatives and the successors and permitted assigns of each of the foregoing (collectively, the “Indemnified Parties” and each individually, an “Indemnified Party”), and hold them harmless from and against all losses, claims, damages, liabilities and reasonable and documented or invoiced out-of-pocket fees and expenses (limited, in the case of (i) legal fees and expenses, to the reasonable, documented and invoiced fees, disbursements and other charges of one counsel for all Indemnified Parties and, if necessary, one firm of local counsel in each relevant material jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnified Parties (and, in the case of an actual conflict of interest, one additional conflicts counsel for the affected Indemnified Parties) and (ii) the fees and expenses of any other advisor or consultant, to the reasonable, documented and invoiced fees, disbursements and other charges of such advisor or consultant, but solely to the extent the Borrower has consented to the retention of such person (such consent not to be unreasonably withheld or delayed)) of any such Indemnified Party arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnified Party is a party thereto and whether or not such proceedings are brought by the Borrower, its equity holders, its affiliates, creditors or any other third person) that relates to the Transactions, including the financing contemplated hereby; provided that no Indemnified Party will be indemnified for any loss, claim, damage, liability, cost or expense to the extent it has resulted from (i) the gross negligence, bad faith or willful misconduct of such party or any of its affiliates or controlling persons this Mortgage or any of the officersother Loan Documents, directorswhether or not any suit or other action actually shall be commenced or undertaken; (iii) enforcement of this Mortgage or any of the other Loan Documents after the occurrence of an Event of Default; (iv) court or administrative proceedings of any kind to which Mortgagee may be a party, whether as plaintiff, defendant or otherwise, by reason of the Indebtedness or any of the Loan Documents; (v) defending and upholding the lien of this Mortgage or otherwise defending or asserting any rights and claims of Mortgagee under this Mortgage and the other Loan Documents; (vi) preparation for, and actions taken in connection with, Mortgagee's taking possession of all or any part of the Mortgaged Property; (vii) negotiations with Mortgagor or any or its members, employees, agents, advisorscontractors, attorneys or members other representatives in connection with the existence or cure of any Event of Default; (viii) any transfer or proposed transfer of the Mortgaged Property in lieu of foreclosure; and (ix) the approval or disapproval by Mortgagee of any action taken or proposed to be taken and required to be approved by Mortgagee under the terms of any of the foregoing Loan Documents. (as determined by a court of competent jurisdiction in a final b) Mortgagor shall indemnify and non-appealable decision)hold harmless Mortgagee from and against, (ii) a material breach by and reimburse Mortgagee for, any such person or one of its affiliates (as determined by a court of competent jurisdiction in a final and non-appealable decision) or (iii) disputes between all claims, demands, liabilities, losses, damages, judgments, penalties, costs and among Indemnified Parties (other than in connection with an Indemnified Party acting in its capacity as an ABL Arrangers or ABL Administrative Agent or any other agent or co-agent (if any) designated by an ABL Arranger, in each case acting in their respective capacities as such) that do not involve an act or omission by the Borrower or its Restricted Subsidiaries. Notwithstanding any other provision herein, no party hereto nor any affiliate of any party hereto, nor any officer, director, employee, agent, controlling person, advisor or other representative of the foregoing or any successor or permitted assign of any of the foregoing shall be liable for any indirect, special, punitive or consequential damages expenses (including, without limitation, any loss reasonable attorneys' fees) which may be imposed upon, asserted against, or incurred or paid by Mortgagee by reason of, on account of profits, business or anticipated savings) in connection with the Term Sheets, the Fee Letter, the Facilities Documentation, the Transactions (including the Facilities and the use of proceeds thereunder), or with respect to any activities related to the Facilities, including the preparation of this Commitment Letter, the Fee Letter and the Facilities Documentation; provided that nothing contained in this sentence shall limit your indemnity and reimbursement obligations to the extent set forth in the immediately preceding paragraph in respect of any third party claims alleging such indirect, special, punitive or consequential damages in connection with which such Indemnified Party is entitled to indemnification hereunder. Notwithstanding the foregoing, each Indemnified Party will be obligated to refund and return promptly any and all amounts paid by you under the immediately preceding paragraph to the extent it has been determined by a court of competent jurisdiction in a final and non-appealable decision that such Indemnified Party is not entitled to payment of such amounts in accordance with the terms hereof. The Borrower shall not be liable for any settlement of any claim, litigation, investigation or proceeding effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with the Borrower’s written consent in any such claim, litigation, investigation or proceeding, the Borrower agrees to indemnify and hold harmless each Indemnified Party from and against any and all losses, claims, damages, liabilities and expenses by reason of such settlement in accordance with the preceding paragraph. The Borrower shall not, without the prior written consent of the applicable Indemnified Party (which consent shall not be unreasonably withheld, delayed or conditioned), effect any settlement of any pending or threatened claim, litigation, investigation or proceeding in respect of which indemnity could have been sought hereunder by such Indemnified Party unless (a) such settlement includes a full and unconditional release of such Indemnified Party in form and substance reasonably satisfactory to such Indemnified Party from all liability on claims that are the subject matter of such claim, litigation, investigation or proceeding and (b) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of such Indemnified Party. In case any claim, litigation, investigation or proceeding is instituted involving any Indemnified Party for which indemnification is to be sought hereunder by such Indemnified Party, then such Indemnified Party will promptly notify the Borrower of the commencement of any such claim, litigation, investigation or proceeding; provided, however, that the failure to so notify the Borrower will not relieve the Borrower from any liability that it may have to such Indemnified Party pursuant to this “Expenses and Indemnification” section or from any liability that the Borrower may have to such Indemnified Party other than pursuant to this “Expenses and Indemnification” section, except to the extent that the Borrower is materially prejudiced by such failure. In connection with any one claim, litigation, investigation or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm for all Indemnified Parties plus additional conflicts and local counsel as provided herein. Governing Law and Forum: New York. Counsel to the ABL Administrative Agent and ABL Arrangers: Xxxxxx Xxxxxx & Xxxxxxx LLP. Interest Rates: Initially, from and after the Closing Date until the last day of the first full fiscal quarter ending after the Closing Date, the interest rates under the ABL Facility will be Adjusted LIBOR plus 1.50% for Adjusted LIBOR Loans or ABR plus 0.50% for ABR Loans, and then on the first day of each fiscal quarter thereafter (the “Adjustment Date”), the applicable margin under the ABL Facility will be determined from the pricing grid below based on the Average Excess Availability for the fiscal quarter ending immediately prior to such Adjustment Date. Average Excess Availability Applicable Margin for Adjusted LIBOR Loans Applicable Margin for ABR Loans Greater than or equal to 66.67% of the Line Cap 1.25 % 0.25 % Greater than or equal to 33.33% of the Line Cap but less than 66.67% of the Line Cap 1.50 % 0.50 % Less than 33.33% of the Line Cap 1.75 % 0.75 % All Swingline Loans shall be ABR Loans. The Borrower may elect interest periods of 1, 2, 3 or 6 months (or, if agreed by all relevant ABL Lenders, 12 months) for Adjusted LIBOR borrowings. Calculation of interest shall be on the basis of the actual days elapsed in a year of 360 days (or 365 or 366 days, as the case may be, in the case of ABR loans). Interest shall be payable in arrears (a) for loans accruing interest at a rate based on Adjusted LIBOR, at the end of each interest period and, for interest periods of greater than 3 months, every 3 months, and on the applicable maturity date and (b) for loans accruing interest based on the ABR, quarterly in arrears and on the applicable maturity date. ABR is the Alternate Base Rate, which is the highest of (i) any bodily injury, death or property damage occurring in or upon or in the ABL Administrative Agent’s “prime rate”vicinity of the Mortgaged Property through any cause whatsoever, (ii) any act performed or omitted to be performed by Mortgagor under any of the Federal Funds Effective Rate plus 1/2 of 1.00% and Loan Documents, or (iii) any transaction, suit, action or proceeding arising out of or in any way connected with the one-month Adjusted LIBOR rate plus 1.00% per annumMortgaged Property, any of the Loan Documents or the Indebtedness. Adjusted LIBOR is the highest of (i) the London interbank offered rate for dollars, adjusted for statutory reserve requirements and (ii) 0%. Letter of Credit Fee: A per annum fee equal Notwithstanding anything contained herein to the spread over Adjusted LIBOR under the ABL Facility will accrue on the aggregate face amount of outstanding letters of credit under the ABL Facility, payable in arrears at the end of each quarter after the Closing Date and upon the termination of the respective letter of credit, in each case for the actual number of days elapsed over a 360-day year. Such fees shall be distributed to the ABL Lenders pro rata in accordance with the amount of each such Lender’s ABL Facility commitment, with exceptions for defaulting Lenders. In additioncontrary, the Borrower foregoing indemnity and hold harmless shall pay not apply to each Issuing Bankany negligent or intentional acts or omissions of Mortgagee, for its own accountagents, (a) a fronting fee equal to a percentage per annum to be agreed upon not to exceed 0.125% per annum of the aggregate face amount of outstanding letters of creditemployees, payable in arrears at the end of each quarter after the Closing Date and upon the termination of the ABL Facility, calculated based upon the actual number of days elapsed over a 360-day year, and (b) customary issuance and administration feescontractors or representatives.

Expenses and Indemnification. If the Transactions are consummated and The Borrower shall pay, if the Closing Date occurs, the Borrower shall pay all reasonable and documented or invoiced out-of-pocket costs and expenses of the ABL Administrative Agent, the Issuing Bank, the Swingline Bank Agent and the ABL Arrangers Commitment Parties (without duplication) associated with the syndication of the ABL Bridge Facility and the preparation, execution and delivery, administration, amendment, modification, waiver and/or enforcement of the ABL Bridge Facility Documentation (limited, in the case of (i) legal fees and expenses, to the reasonable, documented and invoiced fees, disbursements and other charges of the one counsel identified herein and, if necessary, one firm of local counsel in each relevant material jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnified Parties (and, in the case of an actual conflict of interest, one additional conflicts counsel for the affected Indemnified Parties) and (ii) the fees and expenses of any other advisor or consultant, to the reasonable, documented and invoiced fees, disbursements and other charges of such advisor or consultant, but solely to the extent the Borrower has consented to the retention of such person (such consent not to be unreasonably withheld or delayed)). The Borrower will indemnify the ABL Administrative Agent, the ABL ArrangerCommitment Parties, the ABL Lenders and their affiliates, and their the officers, directors, employees, advisors, agents, controlling persons parties and other representatives and the their successors and permitted assigns of each of the foregoing (collectively, the “Indemnified Parties” and each individually, an “Indemnified Party”), and hold them harmless from and against all losses, claims, damages, liabilities and reasonable and documented or invoiced out-of-pocket fees and expenses (limited, in the case of (i) legal fees and expenses, to the reasonable, documented and invoiced fees, disbursements and other charges of the one counsel for all Indemnified Parties identified herein and, if necessary, one firm of local counsel in each relevant material jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnified Parties (and, in the case of an actual conflict of interest, one additional conflicts counsel for the affected Indemnified Parties) and (ii) the fees and expenses of any other advisor or consultant, to the reasonable, documented and invoiced fees, disbursements and other charges of such advisor or consultant, but solely to the extent the Borrower has consented to the retention of such person (such consent not to be unreasonably withheld or delayed)) of any such Indemnified Party arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnified Party is a party thereto and whether or not such proceedings are brought by the Borrower, its equity holders, its affiliates, creditors or any other third person) that relates to the Transactions, including the financing contemplated hereby; provided that no Indemnified Party indemnified person will be indemnified for any loss, claim, damage, liability, cost or expense to the extent it has resulted from (i) the gross negligence, bad faith or willful misconduct of such party person or any of its affiliates or controlling persons or any of the officers, directors, employees, agents, advisors, agents or members of any of the foregoing (as determined by a court of competent jurisdiction in a final and non-appealable decision), (ii) a material breach by any such person or one of its affiliates (as determined by a court of competent jurisdiction in a final and non-appealable decision) or (iii) disputes between and among Indemnified Parties indemnified persons (other than in connection with an Indemnified a Commitment Party acting in its capacity as an ABL Arrangers a Bridge Lead Arranger or ABL Administrative Agent or any other agent or co-agent (if any) designated by an ABL the Bridge Lead Arranger, in each case acting in their respective capacities as such) that do not involve an act or omission by the direct parent of Borrower, the Borrower or its Restricted Subsidiariesrestricted subsidiaries. Notwithstanding any other provision herein, no party hereto nor any affiliate of any party hereto, nor any officer, director, employee, agent, controlling person, advisor or other representative of the foregoing or any successor or permitted assign of any of the foregoing shall be liable for any indirect, special, punitive or consequential damages (including, without limitation, any loss of profits, business or anticipated savings) in connection with the Term Sheets, the Fee Letter, the Facilities Documentation, the Transactions (including the Facilities and the use of proceeds thereunder), or with respect to any activities related to the Facilities, including the preparation of this Commitment Letter, the Fee Letter and the Facilities Documentation; provided that nothing contained in this sentence shall limit your indemnity and reimbursement obligations to the extent set forth in the immediately preceding paragraph in respect of any third party claims alleging such indirect, special, punitive or consequential damages in connection with which such Indemnified Party is entitled to indemnification hereunder. Notwithstanding the foregoing, each Indemnified Party will be obligated to refund and return promptly any and all amounts paid by you under the immediately preceding paragraph to the extent it has been determined by a court of competent jurisdiction in a final and non-appealable decision that such Indemnified Party is not entitled to payment of such amounts in accordance with the terms hereof. The Borrower shall not be liable for any settlement of any claim, litigation, investigation or proceeding effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with the Borrower’s written consent in any such claim, litigation, investigation or proceeding, the Borrower agrees to indemnify and hold harmless each Indemnified Party from and against any and all losses, claims, damages, liabilities and expenses by reason of such settlement in accordance with the preceding paragraph. The Borrower shall not, without the prior written consent of the applicable Indemnified Party (which consent shall not be unreasonably withheld, delayed or conditioned), effect any settlement of any pending or threatened claim, litigation, investigation or proceeding in respect of which indemnity could have been sought hereunder by such Indemnified Party unless (a) such settlement includes a full and unconditional release of such Indemnified Party in form and substance reasonably satisfactory to such Indemnified Party from all liability on claims that are the subject matter of such claim, litigation, investigation or proceeding and (b) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of such Indemnified Party. In case any claim, litigation, investigation or proceeding is instituted involving any Indemnified Party for which indemnification is to be sought hereunder by such Indemnified Party, then such Indemnified Party will promptly notify the Borrower of the commencement of any such claim, litigation, investigation or proceeding; provided, however, that the failure to so notify the Borrower will not relieve the Borrower from any liability that it may have to such Indemnified Party pursuant to this “Expenses and Indemnification” section or from any liability that the Borrower may have to such Indemnified Party other than pursuant to this “Expenses and Indemnification” section, except to the extent that the Borrower is materially prejudiced by such failure. In connection with any one claim, litigation, investigation or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm for all Indemnified Parties plus additional conflicts and local counsel as provided herein. Governing Law and Forum: New York. Counsel to the ABL Bridge Administrative Agent and ABL ArrangersBridge Lead Arranger: Xxxxxx Xxxxxx & Xxxxxxx LLP. Interest RatesMaturity: Initially, from and after The Extended Term Loans will mature on the Closing Date until the last day of the first full fiscal quarter ending date that is eight (8) years after the Closing Date, the interest rates under the ABL Facility will be Adjusted LIBOR plus 1.50% for Adjusted LIBOR Loans or ABR plus 0.50% for ABR Loans, and then on the first day of each fiscal quarter thereafter (the “Adjustment Date”), the applicable margin under the ABL Facility will be determined from the pricing grid below based on the Average Excess Availability for the fiscal quarter ending immediately prior to such Adjustment Date. Average Excess Availability Applicable Margin for Adjusted LIBOR Loans Applicable Margin for ABR Loans Greater than or equal to 66.67% of the Line Cap 1.25 % 0.25 % Greater than or equal to 33.33% of the Line Cap but less than 66.67% of the Line Cap 1.50 % 0.50 % Less than 33.33% of the Line Cap 1.75 % 0.75 % All Swingline Loans shall be ABR Loans. The Borrower may elect interest periods of 1, 2, 3 or 6 months (or, if agreed by all relevant ABL Lenders, 12 months) for Adjusted LIBOR borrowings. Calculation of interest shall be on the basis of the actual days elapsed in a year of 360 days (or 365 or 366 days, as the case may be, in the case of ABR loans). Interest shall be payable in arrears (a) for loans accruing interest at a rate based on Adjusted LIBOR, at the end of each interest period and, for interest periods of greater than 3 months, every 3 months, and on the applicable maturity date and (b) for loans accruing interest based on the ABR, quarterly in arrears and on the applicable maturity date. ABR is the Alternate Base Rate, which is the highest of (i) the ABL Administrative Agent’s “prime rate”, (ii) the Federal Funds Effective Rate plus 1/2 of 1.00% and (iii) the one-month Adjusted LIBOR rate plus 1.00% per annum. Adjusted LIBOR is the highest of (i) the London interbank offered rate for dollars, adjusted for statutory reserve requirements and (ii) 0%. Letter of Credit Fee: A per annum fee equal to the spread over Adjusted LIBOR under the ABL Facility will accrue on the aggregate face amount of outstanding letters of credit under the ABL Facility, payable in arrears at the end of each quarter after the Closing Date and upon the termination of the respective letter of credit, in each case for the actual number of days elapsed over a 360-day year. Such fees shall be distributed to the ABL Lenders pro rata in accordance with the amount of each such Lender’s ABL Facility commitment, with exceptions for defaulting Lenders. In addition, the Borrower shall pay to each Issuing Bank, for its own account, (a) a fronting fee equal to a percentage per annum to be agreed upon not to exceed 0.125% per annum of the aggregate face amount of outstanding letters of credit, payable in arrears at the end of each quarter after the Closing Date and upon the termination of the ABL Facility, calculated based upon the actual number of days elapsed over a 360-day year, and (b) customary issuance and administration fees.

Expenses and Indemnification. If The Borrower and each Guarantor shall jointly and severally pay or reimburse the Transactions are consummated DIP Term Loan Agent and the Closing Date occurs, the Borrower shall pay DIP Term Loan Lenders for all reasonable and documented or invoiced out-of-pocket costs and expenses incurred by the DIP Term Loan Agent and DIP Term Loan Lenders, including the fees and expenses of the ABL Administrative Agent, the Issuing Bank, the Swingline Bank and the ABL Arrangers professional advisors (without duplication) associated with the syndication of the ABL Facility and the preparation, execution and delivery, administration, amendment, modification, waiver and/or enforcement of the ABL Documentation (limited, in the case of limited to (i) in case of legal fees and expenses, to the reasonable, reasonable and documented and invoiced attorneys’ fees, disbursements disbursements, and other charges expenses of Faegre Drinker Bxxxxx & Rxxxx LL, counsel to the one DIP Term Loan Agent and Pxxx, Wxxxx, Rifkind, Wxxxxxx & Gxxxxxxx LLP, counsel identified herein to the Ad Hoc Group and, if to the extent reasonably necessary, one firm of to serve as local counsel in each relevant material jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnified Parties (and, in the case of an actual conflict of interest, one additional conflicts counsel for the affected Indemnified Parties) applicable parties or groups in connection with the Chapter 11 Cases and (ii) the reasonable and documented fees of Hxxxxxxx Lxxxx, Inc. and expenses Accordion Partners LLC) in connection with (i) the preparation, negotiation, and execution of the DIP Term Loan Documents, the Restructuring Support Agreement, the Plan and all documents related to the foregoing; (ii) the funding of the DIP Term Loans; (iii) the creation, perfection or protection of the liens under the DIP Term Loan Documents (including all search, filing, and recording fees); and (iv) the on-going Chapter 11 Cases as well as the administration of the DIP Term Loan Documents (including the preparation, negotiation, and execution of any other advisor amendments, consents, waivers, assignments, restatements or consultant, to the reasonable, documented and invoiced fees, disbursements and other charges of such advisor or consultant, but solely to the extent the Borrower has consented to the retention of such person (such consent not to be unreasonably withheld or delayed)supplements thereto). The Borrower will indemnify and each Guarantor further agree to jointly and severally pay or reimburse the ABL Administrative Agent, the ABL Arranger, the ABL Lenders and their affiliates, and their officers, directors, employees, advisors, agents, controlling persons and other representatives DIP Term Loan Agent and the successors and permitted assigns of each of the foregoing (collectively, the “Indemnified Parties” and each individually, an “Indemnified Party”), and hold them harmless from and against DIP Term Loan Lenders for all losses, claims, damages, liabilities and reasonable and documented or invoiced out-of-pocket fees costs and expenses (limited, in the case of (i) legal fees and expenses, to the reasonable, reasonable and documented and invoiced fees, disbursements and other charges of one counsel for all Indemnified Parties and, if necessary, one firm of local counsel in each relevant material jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnified Parties (and, in the case of an actual conflict of interest, one additional conflicts counsel for the affected Indemnified Parties) and (ii) the attorneys’ fees and expenses of the counsel named above for the applicable parties or groups and any other advisor local counsel for the applicable parties or consultant, to the reasonable, documented and invoiced fees, disbursements and other charges of such advisor or consultant, but solely groups for each jurisdiction to the extent advisable or otherwise (a) one primary counsel for the Borrower has consented DIP Term Loan Agent, (b) one primary counsel to the retention of such person DIP Term Loan Lenders taken as a whole (such consent not to be unreasonably withheld or delayedand additional conflict counsel for similarly situated DIP Term Loan Lenders as a group) and (c) one local counsel for each relevant jurisdiction)) of any such Indemnified Party arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnified Party is a party thereto and whether or not such proceedings are brought , incurred by the Borrower, its equity holders, its affiliates, creditors DIP Term Loan Agent or any other third person) that relates to the Transactions, including the financing contemplated hereby; provided that no Indemnified Party will be indemnified for any loss, claim, damage, liability, cost or expense to the extent it has resulted from such DIP Term Loan Lender in connection with (i) the gross negligence, bad faith or willful misconduct of such party or any of its affiliates or controlling persons or any enforcement of the DIP Term Loan Documents; (ii) any refinancing or restructuring of the DIP Term Loan Facility in the nature of a “work-out”; and (iii) any legal proceeding relating to or arising out of the DIP Term Loan Facility or the other transactions contemplated by the DIP Term Loan Documents, subject to customary carve-outs. The DIP Term Loan Documents will contain customary indemnification provisions (including coverage of environmental liabilities) by the Borrower and each Guarantor (jointly and severally) in favor of the DIP Term Loan Agent, each DIP Term Loan Lender and each of their respective affiliates, successors, and assigns and the respective officers, directors, partners, managers, employees, agents (including sub-agents and co-agents), advisors, or attorneys-in-fact, trustees, controlling persons, and members of any each of the foregoing (as determined by a court and attorneys and representatives of competent jurisdiction in a final and non-appealable decision), (ii) a material breach by any such person or one each of its affiliates (as determined by a court of competent jurisdiction in a final and non-appealable decision) or (iii) disputes between and among Indemnified Parties (other than in connection with an Indemnified Party acting in its capacity as an ABL Arrangers or ABL Administrative Agent or any other agent or co-agent (if any) designated by an ABL Arranger, in each case acting in their respective capacities as such) that do not involve an act or omission by the Borrower or its Restricted Subsidiaries. Notwithstanding any other provision herein, no party hereto nor any affiliate of any party hereto, nor any officer, director, employee, agent, controlling person, advisor or other representative of the foregoing or any successor or permitted assign of any of the foregoing shall be liable for any indirect, special, punitive or consequential damages (including, without limitation, any loss of profits, business or anticipated savings) in connection with the Term Sheets, the Fee Letter, the Facilities Documentation, the Transactions (including the Facilities and the use of proceeds thereunder), or with respect to any activities related to the Facilities, including the preparation of this Commitment Letter, the Fee Letter and the Facilities Documentation; provided that nothing contained in this sentence shall limit your indemnity and reimbursement obligations to the extent set forth in the immediately preceding paragraph in respect of any third party claims alleging such indirect, special, punitive or consequential damages in connection with which such Indemnified Party is entitled to indemnification hereunder. Notwithstanding the foregoing, each Indemnified Party will be obligated subject to refund and return promptly any and all amounts paid by you under the immediately preceding paragraph to the extent it has been determined by a court of competent jurisdiction in a final and noncustomary carve-appealable decision that such Indemnified Party is not entitled to payment of such amounts in accordance with the terms hereof. The Borrower shall not be liable for any settlement of any claim, litigation, investigation or proceeding effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with the Borrower’s written consent in any such claim, litigation, investigation or proceeding, the Borrower agrees to indemnify and hold harmless each Indemnified Party from and against any and all losses, claims, damages, liabilities and expenses by reason of such settlement in accordance with the preceding paragraph. The Borrower shall not, without the prior written consent of the applicable Indemnified Party (which consent shall not be unreasonably withheld, delayed or conditioned), effect any settlement of any pending or threatened claim, litigation, investigation or proceeding in respect of which indemnity could have been sought hereunder by such Indemnified Party unless (a) such settlement includes a full and unconditional release of such Indemnified Party in form and substance reasonably satisfactory to such Indemnified Party from all liability on claims that are the subject matter of such claim, litigation, investigation or proceeding and (b) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of such Indemnified Party. In case any claim, litigation, investigation or proceeding is instituted involving any Indemnified Party for which indemnification is to be sought hereunder by such Indemnified Party, then such Indemnified Party will promptly notify the Borrower of the commencement of any such claim, litigation, investigation or proceeding; provided, however, that the failure to so notify the Borrower will not relieve the Borrower from any liability that it may have to such Indemnified Party pursuant to this “Expenses and Indemnification” section or from any liability that the Borrower may have to such Indemnified Party other than pursuant to this “Expenses and Indemnification” section, except to the extent that the Borrower is materially prejudiced by such failure. In connection with any one claim, litigation, investigation or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm for all Indemnified Parties plus additional conflicts and local counsel as provided herein. Governing Law and Forum: New York. Counsel to the ABL Administrative Agent and ABL Arrangers: Xxxxxx Xxxxxx & Xxxxxxx LLP. Interest Rates: Initially, from and after the Closing Date until the last day of the first full fiscal quarter ending after the Closing Date, the interest rates under the ABL Facility will be Adjusted LIBOR plus 1.50% for Adjusted LIBOR Loans or ABR plus 0.50% for ABR Loans, and then on the first day of each fiscal quarter thereafter (the “Adjustment Date”), the applicable margin under the ABL Facility will be determined from the pricing grid below based on the Average Excess Availability for the fiscal quarter ending immediately prior to such Adjustment Date. Average Excess Availability Applicable Margin for Adjusted LIBOR Loans Applicable Margin for ABR Loans Greater than or equal to 66.67% of the Line Cap 1.25 % 0.25 % Greater than or equal to 33.33% of the Line Cap but less than 66.67% of the Line Cap 1.50 % 0.50 % Less than 33.33% of the Line Cap 1.75 % 0.75 % All Swingline Loans shall be ABR Loans. The Borrower may elect interest periods of 1, 2, 3 or 6 months (or, if agreed by all relevant ABL Lenders, 12 months) for Adjusted LIBOR borrowings. Calculation of interest shall be on the basis of the actual days elapsed in a year of 360 days (or 365 or 366 days, as the case may be, in the case of ABR loans). Interest shall be payable in arrears (a) for loans accruing interest at a rate based on Adjusted LIBOR, at the end of each interest period and, for interest periods of greater than 3 months, every 3 months, and on the applicable maturity date and (b) for loans accruing interest based on the ABR, quarterly in arrears and on the applicable maturity date. ABR is the Alternate Base Rate, which is the highest of (i) the ABL Administrative Agent’s “prime rate”, (ii) the Federal Funds Effective Rate plus 1/2 of 1.00% and (iii) the one-month Adjusted LIBOR rate plus 1.00% per annum. Adjusted LIBOR is the highest of (i) the London interbank offered rate for dollars, adjusted for statutory reserve requirements and (ii) 0%. Letter of Credit Fee: A per annum fee equal to the spread over Adjusted LIBOR under the ABL Facility will accrue on the aggregate face amount of outstanding letters of credit under the ABL Facility, payable in arrears at the end of each quarter after the Closing Date and upon the termination of the respective letter of credit, in each case for the actual number of days elapsed over a 360-day year. Such fees shall be distributed to the ABL Lenders pro rata in accordance with the amount of each such Lender’s ABL Facility commitment, with exceptions for defaulting Lenders. In addition, the Borrower shall pay to each Issuing Bank, for its own account, (a) a fronting fee equal to a percentage per annum to be agreed upon not to exceed 0.125% per annum of the aggregate face amount of outstanding letters of credit, payable in arrears at the end of each quarter after the Closing Date and upon the termination of the ABL Facility, calculated based upon the actual number of days elapsed over a 360-day year, and (b) customary issuance and administration feesouts.

Expenses and Indemnification. If The Borrower and each Guarantor shall jointly and severally pay or reimburse the Transactions are consummated DIP Term Loan Agent and the Closing Date occurs, the Borrower shall pay DIP Term Loan Lenders for all reasonable and documented or invoiced out-of-pocket costs and expenses of incurred by the ABL Administrative Agent, the Issuing Bank, the Swingline Bank DIP Term Loan Agent and the ABL Arrangers (without duplication) associated with the syndication of the ABL Facility and the preparation, execution and delivery, administration, amendment, modification, waiver and/or enforcement of the ABL Documentation DIP Term Loan Lenders (limited, in the case of (i) legal fees and expenses, to the reasonable, reasonable and documented and invoiced attorneys’ fees, disbursements disbursements, and other charges expenses of the one counsel identified named herein and, if necessary, one firm of for the applicable parties or groups and any local counsel in each relevant material jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnified Parties (and, in the case of an actual conflict of interest, one additional conflicts counsel for the affected Indemnified Partiesapplicable parties or groups for each jurisdiction to the extent advisable and fees and expenses of the financial advisor named herein) in connection with (i) the preparation, negotiation, and execution of the DIP Term Loan Documents; (ii) the fees funding of the Loans; (iii) the creation, perfection or protection of the liens under the DIP Term Loan Documents (including all search, filing, and expenses recording fees); and (iv) the on-going administration of the DIP Term Loan Documents (including the preparation, negotiation, and execution of any other advisor amendments, consents, waivers, assignments, restatements or consultant, to the reasonable, documented and invoiced fees, disbursements and other charges of such advisor or consultant, but solely to the extent the Borrower has consented to the retention of such person (such consent not to be unreasonably withheld or delayed)supplements thereto). The Borrower will indemnify and each Guarantor further agree to jointly and severally pay or reimburse the ABL Administrative Agent, the ABL Arranger, the ABL Lenders and their affiliates, and their officers, directors, employees, advisors, agents, controlling persons and other representatives DIP Term Loan Agent and the successors and permitted assigns of each of the foregoing (collectively, the “Indemnified Parties” and each individually, an “Indemnified Party”), and hold them harmless from and against DIP Term Loan Lenders for all losses, claims, damages, liabilities and reasonable and documented or invoiced out-of-pocket fees costs and expenses (limited, in the case of (i) legal fees and expenses, to the reasonable, reasonable and documented and invoiced fees, disbursements and other charges of one counsel for all Indemnified Parties and, if necessary, one firm of local counsel in each relevant material jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnified Parties (and, in the case of an actual conflict of interest, one additional conflicts counsel for the affected Indemnified Parties) and (ii) the attorneys’ fees and expenses of the counsel named herein for the applicable parties or groups and any other advisor local counsel for the applicable parties or consultant, to the reasonable, documented and invoiced fees, disbursements and other charges of such advisor or consultant, but solely groups for each jurisdiction to the extent advisable or otherwise (a) one primary counsel for the Borrower has consented DIP Term Loan Agent, (b) one primary counsel to the retention of such person DIP Term Loan Lenders taken as a whole (such consent not to be unreasonably withheld or delayedand additional conflict counsel for similarly situated DIP Term Loan Lenders as a group) and (c) one local counsel for each relevant jurisdiction)) of any such Indemnified Party arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnified Party is a party thereto and whether or not such proceedings are brought , incurred by the Borrower, its equity holders, its affiliates, creditors DIP Term Loan Agent or any other third person) that relates to the Transactions, including the financing contemplated hereby; provided that no Indemnified Party will be indemnified for any loss, claim, damage, liability, cost or expense to the extent it has resulted from such DIP Term Loan Lender in connection with (i) the gross negligence, bad faith or willful misconduct of such party or any of its affiliates or controlling persons or any enforcement of the DIP Term Loan Documents; (ii) any refinancing or restructuring of the DIP Term Loan Facility in the nature of a “work-out”; and (iii) any legal proceeding relating to or arising out of the DIP Term Loan Facility or the other transactions contemplated by the DIP Term Loan Documents, subject to customary carve-outs. The DIP Term Loan Documents will contain customary indemnification provisions (including coverage of environmental liabilities) by the Borrower and each Guarantor (jointly and severally) in favor of the DIP Term Loan Agent, each DIP Term Loan Lender and each of their respective affiliates, successors, and assigns and the respective officers, directors, partners, managers, employees, agents (including sub-agents and co-agents), advisors, or attorneys-in-fact, trustees, controlling persons, and members of any each of the foregoing (as determined by a court and attorneys and representatives of competent jurisdiction in a final and non-appealable decision), (ii) a material breach by any such person or one each of its affiliates (as determined by a court of competent jurisdiction in a final and non-appealable decision) or (iii) disputes between and among Indemnified Parties (other than in connection with an Indemnified Party acting in its capacity as an ABL Arrangers or ABL Administrative Agent or any other agent or co-agent (if any) designated by an ABL Arranger, in each case acting in their respective capacities as such) that do not involve an act or omission by the Borrower or its Restricted Subsidiaries. Notwithstanding any other provision herein, no party hereto nor any affiliate of any party hereto, nor any officer, director, employee, agent, controlling person, advisor or other representative of the foregoing or any successor or permitted assign of any of the foregoing shall be liable for any indirect, special, punitive or consequential damages (including, without limitation, any loss of profits, business or anticipated savings) in connection with the Term Sheets, the Fee Letter, the Facilities Documentation, the Transactions (including the Facilities and the use of proceeds thereunder), or with respect to any activities related to the Facilities, including the preparation of this Commitment Letter, the Fee Letter and the Facilities Documentation; provided that nothing contained in this sentence shall limit your indemnity and reimbursement obligations to the extent set forth in the immediately preceding paragraph in respect of any third party claims alleging such indirect, special, punitive or consequential damages in connection with which such Indemnified Party is entitled to indemnification hereunder. Notwithstanding the foregoing, each Indemnified Party will be obligated subject to refund and return promptly any and all amounts paid by you under the immediately preceding paragraph to the extent it has been determined by a court of competent jurisdiction in a final and noncustomary carve-appealable decision that such Indemnified Party is not entitled to payment of such amounts in accordance with the terms hereof. The Borrower shall not be liable for any settlement of any claim, litigation, investigation or proceeding effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with the Borrower’s written consent in any such claim, litigation, investigation or proceeding, the Borrower agrees to indemnify and hold harmless each Indemnified Party from and against any and all losses, claims, damages, liabilities and expenses by reason of such settlement in accordance with the preceding paragraph. The Borrower shall not, without the prior written consent of the applicable Indemnified Party (which consent shall not be unreasonably withheld, delayed or conditioned), effect any settlement of any pending or threatened claim, litigation, investigation or proceeding in respect of which indemnity could have been sought hereunder by such Indemnified Party unless (a) such settlement includes a full and unconditional release of such Indemnified Party in form and substance reasonably satisfactory to such Indemnified Party from all liability on claims that are the subject matter of such claim, litigation, investigation or proceeding and (b) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of such Indemnified Party. In case any claim, litigation, investigation or proceeding is instituted involving any Indemnified Party for which indemnification is to be sought hereunder by such Indemnified Party, then such Indemnified Party will promptly notify the Borrower of the commencement of any such claim, litigation, investigation or proceeding; provided, however, that the failure to so notify the Borrower will not relieve the Borrower from any liability that it may have to such Indemnified Party pursuant to this “Expenses and Indemnification” section or from any liability that the Borrower may have to such Indemnified Party other than pursuant to this “Expenses and Indemnification” section, except to the extent that the Borrower is materially prejudiced by such failure. In connection with any one claim, litigation, investigation or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm for all Indemnified Parties plus additional conflicts and local counsel as provided herein. Governing Law and Forum: New York. Counsel to the ABL Administrative Agent and ABL Arrangers: Xxxxxx Xxxxxx & Xxxxxxx LLP. Interest Rates: Initially, from and after the Closing Date until the last day of the first full fiscal quarter ending after the Closing Date, the interest rates under the ABL Facility will be Adjusted LIBOR plus 1.50% for Adjusted LIBOR Loans or ABR plus 0.50% for ABR Loans, and then on the first day of each fiscal quarter thereafter (the “Adjustment Date”), the applicable margin under the ABL Facility will be determined from the pricing grid below based on the Average Excess Availability for the fiscal quarter ending immediately prior to such Adjustment Date. Average Excess Availability Applicable Margin for Adjusted LIBOR Loans Applicable Margin for ABR Loans Greater than or equal to 66.67% of the Line Cap 1.25 % 0.25 % Greater than or equal to 33.33% of the Line Cap but less than 66.67% of the Line Cap 1.50 % 0.50 % Less than 33.33% of the Line Cap 1.75 % 0.75 % All Swingline Loans shall be ABR Loans. The Borrower may elect interest periods of 1, 2, 3 or 6 months (or, if agreed by all relevant ABL Lenders, 12 months) for Adjusted LIBOR borrowings. Calculation of interest shall be on the basis of the actual days elapsed in a year of 360 days (or 365 or 366 days, as the case may be, in the case of ABR loans). Interest shall be payable in arrears (a) for loans accruing interest at a rate based on Adjusted LIBOR, at the end of each interest period and, for interest periods of greater than 3 months, every 3 months, and on the applicable maturity date and (b) for loans accruing interest based on the ABR, quarterly in arrears and on the applicable maturity date. ABR is the Alternate Base Rate, which is the highest of (i) the ABL Administrative Agent’s “prime rate”, (ii) the Federal Funds Effective Rate plus 1/2 of 1.00% and (iii) the one-month Adjusted LIBOR rate plus 1.00% per annum. Adjusted LIBOR is the highest of (i) the London interbank offered rate for dollars, adjusted for statutory reserve requirements and (ii) 0%. Letter of Credit Fee: A per annum fee equal to the spread over Adjusted LIBOR under the ABL Facility will accrue on the aggregate face amount of outstanding letters of credit under the ABL Facility, payable in arrears at the end of each quarter after the Closing Date and upon the termination of the respective letter of credit, in each case for the actual number of days elapsed over a 360-day year. Such fees shall be distributed to the ABL Lenders pro rata in accordance with the amount of each such Lender’s ABL Facility commitment, with exceptions for defaulting Lenders. In addition, the Borrower shall pay to each Issuing Bank, for its own account, (a) a fronting fee equal to a percentage per annum to be agreed upon not to exceed 0.125% per annum of the aggregate face amount of outstanding letters of credit, payable in arrears at the end of each quarter after the Closing Date and upon the termination of the ABL Facility, calculated based upon the actual number of days elapsed over a 360-day year, and (b) customary issuance and administration feesouts.

Expenses and Indemnification. If the Transactions are consummated and the Closing Date occursYou agree (a) to pay or reimburse, the Borrower shall pay all reasonable and documented or invoiced reasonable, out-of-pocket fees, costs, and expenses (including, without limitation, reasonable fees and disbursements of counsel, reasonable consultant costs and expenses, filing and recording fees, and costs and expenses of the ABL Administrative Agent, the Issuing Bank, the Swingline Bank and the ABL Arrangers (without duplication) associated with due diligence, travel, appraisals, valuations, and audits) (the syndication “Expenses”) incurred by or on behalf of the ABL Facility and WFF and/or CapSource in connection with (i) the preparation, execution negotiation, execution, Symphony Technology Group September 28, 2009 and deliverydelivery of this Fifth Amended and Restated Commitment Letter, administrationthe Fifth Amended and Restated Term Sheet, amendmentthe Fourth Amended and Restated Commitment Letter, modificationthe Fourth Amended and Restated Term Sheet, waiver and/or enforcement of the ABL Documentation (limitedThird Amended and Restated Commitment Letter, in the case of (i) legal fees Third Amended and expensesRestated Term Sheet, to the reasonableSecond Amended and Restated Commitment Letter, documented the Second Amended and invoiced feesRestated Term Sheet, disbursements the Amended and other charges of Restated Commitment Letter, the one counsel identified herein andAmended and Restated Term Sheet, if necessarythe Original Commitment Letter, one firm of local counsel in each relevant material jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for the Original Term Sheet, and any and all Indemnified Parties (and, in the case of an actual conflict of interest, one additional conflicts counsel documentation for the affected Indemnified Parties) Facility, and (ii) the fees and expenses enforcement of any other advisor of WFF’s or consultantCapSource’s rights and remedies under this Fifth Amended and Restated Commitment Letter in each case irrespective of whether the Transaction is consummated, and (b) to the reasonableindemnify, documented defend, and invoiced feeshold harmless WFF, disbursements and other charges CapSource, each of such advisor or consultant, but solely to the extent the Borrower has consented to the retention of such person (such consent not to be unreasonably withheld or delayed)). The Borrower will indemnify the ABL Administrative Agent, the ABL Arranger, the ABL Lenders and their respective affiliates, and their officers, directors, employees, advisors, agents, controlling persons and other representatives and the successors and permitted assigns of each of the foregoing (collectively, the “Indemnified Parties” and each individually, an “Indemnified Party”), and hold them harmless from and against all losses, claims, damages, liabilities and reasonable and documented or invoiced out-of-pocket fees and expenses (limited, in the case of (i) legal fees and expenses, to the reasonable, documented and invoiced fees, disbursements and other charges of one counsel for all Indemnified Parties and, if necessary, one firm of local counsel in each relevant material jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnified Parties (and, in the case of an actual conflict of interest, one additional conflicts counsel for the affected Indemnified Parties) and (ii) the fees and expenses of any other advisor or consultant, to the reasonable, documented and invoiced fees, disbursements and other charges of such advisor or consultant, but solely to the extent the Borrower has consented to the retention of such person (such consent not to be unreasonably withheld or delayed)) of any such Indemnified Party arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnified Party is a party thereto and whether or not such proceedings are brought by the Borrower, its equity holders, its affiliates, creditors or any other third person) that relates to the Transactions, including the financing contemplated hereby; provided that no Indemnified Party will be indemnified for any loss, claim, damage, liability, cost or expense to the extent it has resulted from (i) the gross negligence, bad faith or willful misconduct of such party or any of its affiliates or controlling persons or any of the their officers, directors, employees, agents, advisors, or members attorneys, and representatives (each, an “Indemnified Person”) as set forth on Exhibit A hereto. WFF agrees to provide telephonic updates as to the estimated accrued amount of any Expenses from time to time at the request of Sponsor. WFF and Sponsor hereby agree that (a) the foregoing letter agreement, dated as of May 11, 2009, by and between WFF and Sponsor relating to expense reimbursement is hereby terminated; and (as determined by a court b) the reimbursement of competent jurisdiction in a final all out-of-pocket fees, costs, and non-appealable decision), (ii) a material breach by any such person or one of its affiliates (as determined by a court of competent jurisdiction in a final and non-appealable decision) or (iii) disputes between and among Indemnified Parties (other than in connection with an Indemnified Party acting in its capacity as an ABL Arrangers or ABL Administrative Agent or any other agent or co-agent (if any) designated by an ABL Arranger, in each case acting in their respective capacities as such) that do not involve an act or omission by the Borrower or its Restricted Subsidiaries. Notwithstanding any other provision herein, no party hereto nor any affiliate of any party hereto, nor any officer, director, employee, agent, controlling person, advisor or other representative of the foregoing or any successor or permitted assign of any of the foregoing shall be liable for any indirect, special, punitive or consequential damages expenses (including, without limitation, any loss reasonable fees and disbursements of profitscounsel, business or anticipated savingsreasonable consultant costs and expenses, filing and recording fees, and costs and expenses associated with due diligence, travel, appraisals, valuations, and audits) in connection with the Term Sheetsincurred by WFF prior to, the Fee Letter, the Facilities Documentation, the Transactions (including the Facilities and the use of proceeds thereunder)or, or with respect to any activities related to after the Facilities, including date hereof shall be governed by the preparation terms of this Fifth Amended and Restated Commitment Letter, the Fee Letter and the Facilities Documentation; provided that nothing contained in this sentence shall limit your indemnity and reimbursement obligations to the extent set forth in the immediately preceding paragraph in respect of any third party claims alleging such indirect, special, punitive or consequential damages in connection with which such Indemnified Party is entitled to indemnification hereunder. Notwithstanding the foregoing, each Indemnified Party will be obligated to refund and return promptly any and all amounts paid by you under the immediately preceding paragraph to the extent it has been determined by a court of competent jurisdiction in a final and non-appealable decision that such Indemnified Party is not entitled to payment of such amounts in accordance with the terms hereof. The Borrower shall not be liable for any settlement of any claim, litigation, investigation or proceeding effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with the Borrower’s written consent in any such claim, litigation, investigation or proceeding, the Borrower agrees to indemnify and hold harmless each Indemnified Party from and against any and all losses, claims, damages, liabilities and expenses by reason of such settlement in accordance with the preceding paragraph. The Borrower shall not, without the prior written consent of the applicable Indemnified Party (which consent shall not be unreasonably withheld, delayed or conditioned), effect any settlement of any pending or threatened claim, litigation, investigation or proceeding in respect of which indemnity could have been sought hereunder by such Indemnified Party unless (a) such settlement includes a full and unconditional release of such Indemnified Party in form and substance reasonably satisfactory to such Indemnified Party from all liability on claims that are the subject matter of such claim, litigation, investigation or proceeding and (b) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of such Indemnified Party. In case any claim, litigation, investigation or proceeding is instituted involving any Indemnified Party for which indemnification is to be sought hereunder by such Indemnified Party, then such Indemnified Party will promptly notify the Borrower of the commencement of any such claim, litigation, investigation or proceeding; provided, however, that the failure to so notify the Borrower will not relieve the Borrower from any liability that it may have to such Indemnified Party pursuant to this “Expenses and Indemnification” section or from any liability that the Borrower may have to such Indemnified Party other than pursuant to this “Expenses and Indemnification” section, except to the extent that the Borrower is materially prejudiced by such failure. In connection with any one claim, litigation, investigation or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm for all Indemnified Parties plus additional conflicts and local counsel as provided herein. Governing Law and Forum: New York. Counsel to the ABL Administrative Agent and ABL Arrangers: Xxxxxx Xxxxxx & Xxxxxxx LLP. Interest Rates: Initially, from and after the Closing Date until the last day of the first full fiscal quarter ending after the Closing Date, the interest rates under the ABL Facility will be Adjusted LIBOR plus 1.50% for Adjusted LIBOR Loans or ABR plus 0.50% for ABR Loans, and then on the first day of each fiscal quarter thereafter (the “Adjustment Date”), the applicable margin under the ABL Facility will be determined from the pricing grid below based on the Average Excess Availability for the fiscal quarter ending immediately prior to such Adjustment Date. Average Excess Availability Applicable Margin for Adjusted LIBOR Loans Applicable Margin for ABR Loans Greater than or equal to 66.67% of the Line Cap 1.25 % 0.25 % Greater than or equal to 33.33% of the Line Cap but less than 66.67% of the Line Cap 1.50 % 0.50 % Less than 33.33% of the Line Cap 1.75 % 0.75 % All Swingline Loans shall be ABR Loans. The Borrower may elect interest periods of 1, 2, 3 or 6 months (or, if agreed by all relevant ABL Lenders, 12 months) for Adjusted LIBOR borrowings. Calculation of interest shall be on the basis of the actual days elapsed in a year of 360 days (or 365 or 366 days, as the case may be, in the case of ABR loans). Interest shall be payable in arrears (a) for loans accruing interest at a rate based on Adjusted LIBOR, at the end of each interest period and, for interest periods of greater than 3 months, every 3 months, and on the applicable maturity date and (b) for loans accruing interest based on the ABR, quarterly in arrears and on the applicable maturity date. ABR is the Alternate Base Rate, which is the highest of (i) the ABL Administrative Agent’s “prime rate”, (ii) the Federal Funds Effective Rate plus 1/2 of 1.00% and (iii) the one-month Adjusted LIBOR rate plus 1.00% per annum. Adjusted LIBOR is the highest of (i) the London interbank offered rate for dollars, adjusted for statutory reserve requirements and (ii) 0%. Letter of Credit Fee: A per annum fee equal to the spread over Adjusted LIBOR under the ABL Facility will accrue on the aggregate face amount of outstanding letters of credit under the ABL Facility, payable in arrears at the end of each quarter after the Closing Date and upon the termination of the respective letter of credit, in each case for the actual number of days elapsed over a 360-day year. Such fees shall be distributed to the ABL Lenders pro rata in accordance with the amount of each such Lender’s ABL Facility commitment, with exceptions for defaulting Lenders. In addition, the Borrower shall pay to each Issuing Bank, for its own account, (a) a fronting fee equal to a percentage per annum to be agreed upon not to exceed 0.125% per annum of the aggregate face amount of outstanding letters of credit, payable in arrears at the end of each quarter after the Closing Date and upon the termination of the ABL Facility, calculated based upon the actual number of days elapsed over a 360-day year, and (b) customary issuance and administration fees.

Expenses and Indemnification. If The Borrowers will indemnify the Transactions are consummated and the Closing Date occursArrangers, the Borrower shall pay all reasonable and documented or invoiced out-of-pocket costs and expenses of Agent, the ABL Administrative Syndication Agent, the Documentation Agent, the Lenders, the Issuing Bank, the Swingline Bank Lender, their respective affiliates, successors and assigns and the ABL Arrangers (without duplication) associated with the syndication of the ABL Facility and the preparation, execution and delivery, administration, amendment, modification, waiver and/or enforcement of the ABL Documentation (limited, in the case of (i) legal fees and expenses, to the reasonable, documented and invoiced fees, disbursements and other charges of the one counsel identified herein and, if necessary, one firm of local counsel in each relevant material jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnified Parties (and, in the case of an actual conflict of interest, one additional conflicts counsel for the affected Indemnified Parties) and (ii) the fees and expenses of any other advisor or consultant, to the reasonable, documented and invoiced fees, disbursements and other charges of such advisor or consultant, but solely to the extent the Borrower has consented to the retention of such person (such consent not to be unreasonably withheld or delayed)). The Borrower will indemnify the ABL Administrative Agent, the ABL Arranger, the ABL Lenders and their affiliates, and their officers, directors, employees, agents, advisors, agents, controlling persons and other representatives and the successors and permitted assigns members of each of the foregoing (collectively, the “Indemnified Parties” and each individuallyeach, an “Indemnified PartyPerson”), ) and hold them harmless from and against all lossescosts, claims, damages, liabilities and reasonable and documented or invoiced out-of-pocket fees and expenses (limited, in the case of (i) legal fees and expenses, to the reasonable, documented and invoiced including reasonable fees, disbursements and other charges of one counsel for all Indemnified Parties and, if necessary, one firm of local counsel in each relevant material jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnified Parties (and, in the case of an actual conflict of interest, one additional conflicts counsel for the affected Indemnified Partiescounsel) and (ii) the fees and expenses of any other advisor or consultant, to the reasonable, documented and invoiced fees, disbursements and other charges liabilities of such advisor or consultant, but solely to the extent the Borrower has consented to the retention of such person (such consent not to be unreasonably withheld or delayed)) of any such Indemnified Party Person arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnified Party Person is a party thereto and regardless of whether such matter is initiated by a third party or not such proceedings are brought by Holdings, the Borrower, its equity holders, its affiliates, creditors Company or any other third personof their respective affiliates or shareholders) that relates to the Transactions, Transactions (including the financing contemplated hereby; Acquisition) or any transactions in connection therewith, provided that no Indemnified Party Person will be indemnified for any losscost, claim, damage, liability, cost expense or expense liability to the extent it has resulted from (i) determined in the gross negligencefinal, bad faith or willful misconduct non-appealable judgment of such party or any of its affiliates or controlling persons or any of the officers, directors, employees, agents, advisors, or members of any of the foregoing (as determined by a court of competent jurisdiction in a final and nonto have resulted from its gross negligence or willful misconduct. In addition, all reasonable out-appealable decision), (ii) a material breach by any such person or one of its affiliates (as determined by a court of competent jurisdiction in a final and nonof-appealable decision) or (iii) disputes between and among Indemnified Parties (other than in connection with an Indemnified Party acting in its capacity as an ABL Arrangers or ABL Administrative Agent or any other agent or co-agent (if any) designated by an ABL Arranger, in each case acting in their respective capacities as such) that do not involve an act or omission by the Borrower or its Restricted Subsidiaries. Notwithstanding any other provision herein, no party hereto nor any affiliate of any party hereto, nor any officer, director, employee, agent, controlling person, advisor or other representative of the foregoing or any successor or permitted assign of any of the foregoing shall be liable for any indirect, special, punitive or consequential damages pocket expenses (including, without limitation, any loss reasonable fees, disbursements and other charges of profitscounsel) of the Arrangers, business or anticipated savings) in connection the Agent, the Syndication Agent, the Documentation Agent, the Issuing Bank, the Swingline Lender and the Lenders for enforcement costs and documentary taxes associated with the Term Sheets, the Fee Letter, the Facilities Documentation, the Transactions (including the Facilities and the use of proceeds thereunder), or with respect to any activities related to the Facilities, including the preparation of this Commitment Letter, the Fee Letter and the Facilities Documentation; provided that nothing contained in this sentence shall limit your indemnity and reimbursement obligations to the extent set forth in the immediately preceding paragraph in respect of any third party claims alleging such indirect, special, punitive or consequential damages in connection with which such Indemnified Party is entitled to indemnification hereunder. Notwithstanding the foregoing, each Indemnified Party will be obligated to refund and return promptly any and all amounts paid by you under the immediately preceding paragraph to the extent it has been determined by a court of competent jurisdiction in a final and non-appealable decision that such Indemnified Party is not entitled to payment of such amounts in accordance with the terms hereof. The Borrower shall not be liable for any settlement of any claim, litigation, investigation or proceeding effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with the Borrower’s written consent in any such claim, litigation, investigation or proceeding, the Borrower agrees to indemnify and hold harmless each Indemnified Party from and against any and all losses, claims, damages, liabilities and expenses by reason of such settlement in accordance with the preceding paragraph. The Borrower shall not, without the prior written consent of the applicable Indemnified Party (which consent shall not be unreasonably withheld, delayed or conditioned), effect any settlement of any pending or threatened claim, litigation, investigation or proceeding in respect of which indemnity could have been sought hereunder by such Indemnified Party unless (a) such settlement includes a full and unconditional release of such Indemnified Party in form and substance reasonably satisfactory to such Indemnified Party from all liability on claims that are the subject matter of such claim, litigation, investigation or proceeding and (b) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of such Indemnified Party. In case any claim, litigation, investigation or proceeding is instituted involving any Indemnified Party for which indemnification is to be sought hereunder by such Indemnified Party, then such Indemnified Party will promptly notify the Borrower of the commencement of any such claim, litigation, investigation or proceeding; provided, however, that the failure to so notify the Borrower will not relieve the Borrower from any liability that it may have to such Indemnified Party pursuant to this “Expenses and Indemnification” section or from any liability that the Borrower may have to such Indemnified Party other than pursuant to this “Expenses and Indemnification” section, except to the extent that the Borrower is materially prejudiced by such failure. In connection with any one claim, litigation, investigation or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm for all Indemnified Parties plus additional conflicts and local counsel as provided hereinBorrowers. Governing Law and Forum: New York; provided that, for purposes of interpretation of terms of the definitive documentation for the Facilities incorporated from or based on the Merger Agreement, including the definition of “Company MAE”, the laws of Delaware shall govern, and any state or federal court sitting in Delaware shall be an appropriate forum for such matters governed by Delaware law. Counsel to the ABL Administrative Agent and ABL Arrangers: Xxxxxx Xxxxxx Xxxxxxx, Swaine & Xxxxxxx Xxxxx LLP. Interest Rates: Initially, from and after Revolving Facility1 $ 0.0 Merger Consideration $ 1,912.0 Tranche A Facility 1,200.0 Refinanced Indebtedness 88.0 Tranche B Facility 1,000.0 Transaction Costs 200.0 Total Sources $ 2,200.0 Total Uses $ 2,200.0 1 Represents amount to be drawn under the Closing Date until the last day of the first full fiscal quarter ending after $600,000,000 Revolving Facility on the Closing Date, the interest rates . Summary of Additional Conditions Precedent1 The initial borrowing under the ABL Facility will be Adjusted LIBOR plus 1.50% for Adjusted LIBOR Loans or ABR plus 0.50% for ABR Loans, and then on the first day of each fiscal quarter thereafter (the “Adjustment Date”), the applicable margin under the ABL Facility will be determined from the pricing grid below based on the Average Excess Availability for the fiscal quarter ending immediately prior to such Adjustment Date. Average Excess Availability Applicable Margin for Adjusted LIBOR Loans Applicable Margin for ABR Loans Greater than or equal to 66.67% of the Line Cap 1.25 % 0.25 % Greater than or equal to 33.33% of the Line Cap but less than 66.67% of the Line Cap 1.50 % 0.50 % Less than 33.33% of the Line Cap 1.75 % 0.75 % All Swingline Loans Facilities shall be ABR Loans. The Borrower may elect interest periods of 1, 2, 3 or 6 months (or, if agreed by all relevant ABL Lenders, 12 months) for Adjusted LIBOR borrowings. Calculation of interest shall be on the basis of the actual days elapsed in a year of 360 days (or 365 or 366 days, as the case may be, in the case of ABR loans). Interest shall be payable in arrears (a) for loans accruing interest at a rate based on Adjusted LIBOR, at the end of each interest period and, for interest periods of greater than 3 months, every 3 months, and on the applicable maturity date and (b) for loans accruing interest based on the ABR, quarterly in arrears and on the applicable maturity date. ABR is the Alternate Base Rate, which is the highest of (i) the ABL Administrative Agent’s “prime rate”, (ii) the Federal Funds Effective Rate plus 1/2 of 1.00% and (iii) the one-month Adjusted LIBOR rate plus 1.00% per annum. Adjusted LIBOR is the highest of (i) the London interbank offered rate for dollars, adjusted for statutory reserve requirements and (ii) 0%. Letter of Credit Fee: A per annum fee equal subject to the spread over Adjusted LIBOR under the ABL Facility will accrue on the aggregate face amount of outstanding letters of credit under the ABL Facility, payable in arrears at the end of each quarter after the Closing Date and upon the termination of the respective letter of credit, in each case for the actual number of days elapsed over a 360-day year. Such fees shall be distributed to the ABL Lenders pro rata in accordance with the amount of each such Lender’s ABL Facility commitment, with exceptions for defaulting Lenders. In addition, the Borrower shall pay to each Issuing Bank, for its own account, (a) a fronting fee equal to a percentage per annum to be agreed upon not to exceed 0.125% per annum of the aggregate face amount of outstanding letters of credit, payable in arrears at the end of each quarter after the Closing Date and upon the termination of the ABL Facility, calculated based upon the actual number of days elapsed over a 360-day year, and (b) customary issuance and administration fees.following additional conditions precedent: