GLOBAL CONSUMER ACQUISITION
CORP.
1370 Avenue of the Americas, 28th Floor
New York, NY 10019
INDEMNIFICATION AND WAIVER
LETTER
PERSONAL AND
CONFIDENTIAL
JEFFERIES
FINANCE LLC
520 Madison Avenue
New York, New York 10022
Attention:
General Counsel — Investment Banking
Reference is made
to that certain commitment letter, dated July 13, 2009,
between Jefferies Finance LLC (“ Jefferies
Finance ” or “ you ”) and
Hayground Cove Asset Management LLC (the “
Sponsor ”) (including the exhibits, schedules
and annexes thereto, the “ Commitment Letter
”), concerning the financing of the proposed Transactions
described therein. Except as otherwise defined herein, capitalized
terms used herein and defined in the Commitment Letter shall be
used herein as therein defined.
In connection with
the Transactions, and to induce Jefferies Finance to issue the
Commitment Letter to the Sponsor, and for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, we have agreed to issue this indemnity letter (this
“ Indemnity Letter ”) in favor of each
indemnified person (as defined below). In that connection, we
hereby agree to indemnify and hold harmless Jefferies Finance, the
Lenders and each of your and their respective affiliates (including
Jefferies & Company, Inc. (“ Jefco
”)) and subsidiaries and each of the respective officers,
directors, partners, trustees, employees, affiliates, shareholders,
advisors, agents, representatives, attorneys-in-fact and
controlling persons of each of the foregoing (each, an “
indemnified person ”) from and against any and
all losses, claims, damages and liabilities (“
Losses ”) to which any such indemnified person,
directly or indirectly, may become subject arising out of, relating
to, resulting from or otherwise in connection with the Debt
Financing Letters, the Debt Financing, the use of the proceeds
therefrom, the Transactions, any of the other transactions
contemplated by the Debt Financing Letters, or any action, claim,
suit, litigation, investigation, inquiry or proceeding (each, a
“ Claim ”), directly or indirectly,
arising out of, relating to, or resulting from, or otherwise in
connection with, any of the foregoing ( IN ALL CASES, WHETHER OR
NOT CAUSED OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE,
CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNIFIED PERSON) ,
regardless of whether any indemnified person is a party thereto or
whether such Claim is brought by us, any of our affiliates or a
third party, and, in addition, to reimburse each indemnified
person
upon demand at
any time and from time to time for all reasonable legal and other
reasonable expenses incurred by it in connection with
investigating, preparing to defend or defending, or providing
evidence in or preparing to serve or serving as a witness with
respect to, any Claim, directly or indirectly, arising out of,
relating to, resulting from or otherwise in connection with any of
the foregoing (including in connection with the enforcement of the
indemnification obligations and waivers set forth herein and/or in
any Debt Financing Letter); provided , however , that
no indemnified person will be entitled to indemnity hereunder in
respect of any Loss to the extent that it is found by a final,
non-appealable judgment of a court of competent jurisdiction that
such Loss resulted primarily and directly from the gross
negligence, bad faith or willful misconduct of such indemnified
person. In addition, in no event will any indemnified person be
liable for consequential, special, exemplary, punitive or indirect
damages (including any loss of profits, business or anticipated
savings), whether, directly or indirectly, as a result of any
failure to fund all or any portion of the Debt Financing or
otherwise arising out of, relating to, resulting from or otherwise
in connection with the Debt Financing or arising out of, relating
to, resulting from or otherwise in connection with any Claim or
otherwise. In addition, no indemnified person will be liable for
any damages arising from the use by unauthorized persons of
Information sent through electronic, telecommunications or other
information transmission systems that are intercepted or otherwise
obtained by such persons.
We hereby further
agree that we shall not settle or compromise or consent to the
entry of any judgment in or otherwise seek to terminate any pending
or threatened Claim in which any indemnified person is or could be
a party and as to which indemnification or contribution could have
been sought by such indemnified person hereunder whether or not
such indemnified person is a party to any Debt Financing
Letter,
|
