WIXLIB

Presentation Title/Client Name “Xerox” ProvisionsNo Recourse Against Financing SourcesExample 1Notwithstanding anything to the contrary herein, the Company, on behalf of itself and the Company Related Parties, hereby (i)acknowledges that none of the Financing Sources (and/or any of their Affiliates and/or their or their Affiliates’ officers,directors, employees, controlling persons, advisors, agents, attorneys or representatives) shall have any liability to the Companyor any Company Related Party under this Agreement or for any claim made by the Company or any Company Related Partybased on, in respect of, or by reason of, the transactions contemplated hereby, including, but not limited to, any dispute relatingto, or arising from, the Debt Financing, the Debt Commitment Letters or the performance thereof, (ii) waives any rights or claimsof any kind or nature (whether in law or in equity, in contract, in tort or otherwise) the Company or any Company Related Partymay have against any Financing Source (and/or any of their Affiliates and/or their or their Affiliates’ officers, directors,employees, controlling persons, advisors, agents, attorneys or representatives) relating to this Agreement, the Debt Financing or thetransactions contemplated hereby or thereby and (iii) agrees not to commence (and, if commenced, agrees to dismiss or otherwiseterminate, and not to assist) any action, arbitration, audit, hearing, investigation, litigation, petition, grievance, complaint, suit orproceeding against any Financing Source (and/or any of their Affiliates and/or their or their Affiliates’ officers, directors,employees, controlling persons, advisors, agents, attorneys or representatives) in connection with this Agreement, the DebtFinancing, the Debt Commitment Letters or the transactions contemplated hereby or thereby. . . . Nothing in this Section 9.12 willlimit the rights of Parent or Merger Sub or any Parent Related Party in respect of the Debt Financing under any commitment letterrelated thereto. Without limiting the foregoing, no Financing Source shall be subject to any special, consequential, punitive orindirect damages or damages of a tortious nature to a Company Related Party.13

Presentation Title/Client Name “Xerox” ProvisionsNo Recourse Against Financing SourcesExample 2Each Party agrees, on behalf of itself and its Related Parties, that all Legal Proceedings (whether in Contract or in tort, in Law or inequity or otherwise, or granted by statute or otherwise, whether by or through attempted piercing of the corporate, limitedpartnership or limited liability company veil or any other theory or doctrine, including alter ego or otherwise) that may be basedupon, in respect of, arise under, out or by reason of, be connected with, or relate in any manner to: (a) this Agreement, any of theother Transaction Documents or the Merger (including the Financing) or any other transactions contemplated hereunder orthereunder; (b) the negotiation, execution or performance this Agreement or any of the other Transaction Documents (includingany representation or warranty made in connection with, or as an inducement to, this Agreement or any of the other TransactionDocuments); (c) any breach or violation of this Agreement or any of the other Transaction Documents; and (d) any failure of theMerger (including the Financing) or any other transactions contemplated hereunder or thereunder to be consummated, in eachcase, may be made only against (and are those solely of) the Persons that are, in the case of this Agreement, expressly identified asparties to this Agreement, and in the case of the other Transaction Documents, Persons expressly identified as parties to suchTransaction Documents and in accordance with, and subject to the terms and conditions of, this Agreement or such TransactionDocuments, as applicable. Notwithstanding anything in this Agreement or any of the other Transaction Documents to the contrary,each Party agrees, on behalf of itself and its Related Parties, that no recourse under this Agreement or any of the otherTransaction Documents or in connection with the Merger (including the Financing) or any other transactions contemplatedhereunder or under any other Transaction Document will be sought or had against any other Person, including any RelatedParty, and no other Person, including any Related Party, will have any liabilities or obligations (whether in Contract or in tort,in Law or in equity or otherwise, or granted by statute or otherwise, whether by or through attempted piercing of the corporate,limited partnership or limited liability company veil or any other theory or doctrine, including alter ego or otherwise), for anyclaims, causes of action, obligations or liabilities arising under, out of, in connection with or related in any manner to the itemsin the immediately preceding clauses (a) through (d) 14

Presentation Title/Client Name “Xerox” ProvisionsLimitation on Liability Provision that states if reverse break fee is paid, financingsources will have no additional liability to the seller. SeeExamples 3 and 4.– Gives the financing sources the benefit of the damagescap negotiated by the purchaser.– Concern when Xerox provisions were initiallyintroduced that this might implicitly suggest thatfinancing sources could be liable under mergeragreement.15

Presentation Title/Client Name “Xerox” ProvisionsLimitation on LiabilityExample 3Notwithstanding anything to the contrary in this Agreement, in the event that the Company shall receive full payment of the ParentTermination Fee pursuant to Section 7.3(f) under circumstances in which the Parent Termination Fee was payable in accordancewith the terms of this Agreement, the payment by Parent of the Parent Termination Fee shall not be a penalty and shall constituteliquidated damages for any and all losses suffered or incurred by the Company or any other Person in connection with thisAgreement and, notwithstanding anything in this Agreement that may be deemed to the contrary, under such circumstances, theParent Termination Fee shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise), ofthe Company and its respective Affiliates or any other Person against any of Parent, Merger Sub, their Subsidiaries or Affiliates,the Guarantor, the Sponsor Entities, the Debt Financing Sources or any other financing source of Parent, and any of theirrespective former, current or future, direct or indirect equityholders, controlling persons, stockholders, directors, officers,employees, agents, Affiliates, affiliated (or commonly advised) funds, members, managers, general or limited partners, attorneys,advisors or other Representatives, or any of their respective successors or assigns or other representative of any of the foregoing(collectively, the “Parent Related Parties”) for any breach, cost, expense, liability, loss or damage or other claim suffered as aresult thereof or in connection with such termination or related thereto, in respect of the Transactions, this Agreement, theGuarantee, the Support Agreement, the Confidentiality Agreement, the Debt Financing, the Debt Commitment Letter or theTransactions or thereby or otherwise, and upon payment of such Parent Termination Fee, none of the Parent and itsSubsidiaries and any of the Parent Related Parties shall have any further liability or obligation relating to or arising out of thisAgreement, the Guarantee, the Support Agreement, the Confidentiality Agreement, the Debt Financing, the Debt CommitmentLetter or the Transactions or thereby or otherwise.16

Presentation Title/Client Name “Xerox” ProvisionsLimitation on LiabilityExample 4Other than in the case of fraud, in no event shall the Company Related Parties have the right to seek or obtain money damages orexpense reimbursement (whether at law or in equity, in contract, in tort or otherwise) from any Parent Related Party other thanthe right of the Company to payment of the Reverse Termination Fee as set forth in Section 8.03(b) and the right of theCompany to recover against the Guarantor to the extent provided by the Guaranty. In addition, notwithstanding anything in thisAgreement to the contrary, the Company and each other Company Related Party hereby waives any claims against the FinancingSources and hereby agrees that in no event shall the Financing Sources have any liability or obligation to the Company or anyother Company Related Party relating to or arising out of this Agreement, the Debt Financing, the Debt Commitment Letter or thetransactions contemplated hereby; provided that, notwithstanding the foregoing, nothing in this Section 9.11(b)(v) shall in any waylimit or modify the rights and obligations of Parent, Merger Sub or the Financing Sources under the Debt Commitment Letter. Inaddition to the rights of Parent and Merger Sub hereunder, Parent and Merger Sub shall be entitled, at Parent and Merger Sub’ssole election, to settle any claims arising from or relating to this Agreement by consummating the Merger in accordance with theterms of this Agreement.17

Presentation Title/Client Name “Xerox” ProvisionsGoverning Law and Venue Language in governing law provision that any disputewith respect to the commitment letter will be governed byNew York law and brought in New York courts. SeeExample 5:– Consider carve-outs for any provision in thecommitment letter that piggybacks off of purchaseagreement (e.g., definition of MAE, interpretation ofrepresentations and warranties that are SunGardpurchase agreement representations, andconsummation of acquisition in accordance with termsof purchase agreement).18

Presentation Title/Client Name “Xerox” ProvisionsGoverning Law and VenueExample 5(a)With respect to any dispute or proceeding relating to this Section 9.12 or any other dispute involving the Financing Sources, theCompany, on behalf of itself and the Company Related Parties, (w) submits to the exclusive jurisdiction of the courts of the Stateof New York or federal courts of the United States of America, in each case, sitting in the borough of Manhattan, and any appellatecourt from any thereof (the courts described in this clause (w), the “Applicable Courts”), and agrees that all claims in respect ofany such litigation may be heard and determined only in an Applicable Court, (x) waives, to the fullest extent it may legally do so,any objection which it may now or hereafter have to the laying of venue of any proceeding in any Applicable Court, (y) waives, tothe fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such proceeding in any ApplicableCourt, and (z) agrees that a final judgment in any such proceeding shall be conclusive and may be enforced in other jurisdictionsby suit on the judgment or any other manner provided by law.(b)This Agreement and all claims arising out of this Agreement shall be governed by, and construed in accordance with, the internalLaws of the State of Delaware (whether arising in contract, tort, equity or otherwise), without regard to any conflicts of lawprinciples that would result in the application of any Law other than the Law of the State of Delaware; provided that,notwithstanding the foregoing, any disputes involving the Lender Related Parties will be governed by and construed inaccordance with the applicable Laws of the State of New York without giving regard to conflicts or choice of law principles thatwould result in the application of any Law other than the Law of the State of New York.19

Presentation Title/Client Name “Xerox” ProvisionsWaiver of Jury Trial Provision waiving right to a jury trial for litigationrelating to the debt financing.EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE PURSUANT TO THISAGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTYHEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT THAT SUCH PARTY MAY HAVE TO ATRIAL BY JURY IN RESPECT OF ANY LEGAL PROCEEDING (WHETHER FOR BREACH OF CONTRACT, TORTIOUSCONDUCT OR OTHERWISE) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT,THE MERGER, THE GUARANTEE, THE FINANCING LETTERS OR THE FINANCING (INCLUDING ANY SUCHLEGAL PROCEEDING INVOLVING OR AGAINST THE FINANCING SOURCES). EACH PARTY ACKNOWLEDGESAND AGREES THAT (a) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HASREPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OFLITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; (b) IT UNDERSTANDS AND HAS CONSIDERED THEIMPLICATIONS OF THIS WAIVER; (c) IT MAKES THIS WAIVER VOLUNTARILY; AND (d) IT HAS BEEN INDUCED TOENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS INTHIS SECTION 9.11.20

Presentation Title/Client Name “Xerox” ProvisionsAmendment and Waiver Language that states that any specified provisionsbenefitting financing sources will not be amended withoutconsent of financing sources.(a)Notwithstanding anything to the contrary contained herein, Sections 7.4(d) [Parent Termination Fee], 7.4(e) [Parent TerminationFee], 7.5 [Limitation on Recourse], 8.10 [No Third Party Beneficiaries], 8.12(d) [Governing Law; Consent to Jurisdiction; Waiverof Trial by Jury], 8.12(e) [Governing Law; Consent to Jurisdiction; Waiver of Trial by Jury] and this Section 7.6(b) [Amendment](and any provision of this Agreement to the extent a modification, waiver or termination of such provision would modify thesubstance of Sections 7.4(d), 7.4(e), 7.5, 8.10, 8.12(d), 8.12(e) and this Section 7.6(b)) may not be modified, waived or terminatedin a manner that is materially adverse to the Financing Sources (taken as a whole) without the prior written consent of theFinancing Sources.(b)No waiver of any provision hereunder or any breach or default thereof shall extend to or affect in any way any other provision orprior or subsequent breach or default; provided, further that no amendment, supplement or change may be made to Section 11.06[Manner of and Limitation on Payment], Section 11.10 [Financing Sources], Section 12.09 [Third-Party Beneficiaries], Section12.12 [Governing Law; Jurisdiction] or this Section 12.07 that adversely impacts any Committed Financing Source without theprior written consent of the Committed Financing Sources adversely impacted thereby.21

Presentation Title/Client Name “Xerox” ProvisionsThird Party Beneficiary Provision that provides that financing sources are expressthird-party beneficiary of Xerox provisions.(a)This Agreement shall be binding upon and inure solely to the benefit of the parties and their respective successors and assigns, andnothing in this Agreement, express or implied, other than pursuant to Sections 5.9 and 5.11(c), is intended to or shall confer uponany other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement; provided, however,that the Financing Sources shall be express third party beneficiaries of and have the right to enforce Sections 7.4(d) [ParentTermination Fee],7.4(e) [Parent Termination Fee], 7.5 [Limitation on Recourse], 7.6(b) [Amendment], 8.10 [No Third PartyBeneficiaries], 8.12(d) [Governing Law; Consent to Jurisdiction; Waiver of Trial by Jury] and 8.12(e) [Governing Law; Consent toJurisdiction; Waiver of Trial by Jury].(b)This Agreement (including any exhibits hereto), the Company Disclosure Schedule, the Parent Disclosure Schedule, theConfidentiality Agreement, the Support Agreement, the Debt Commitment Letter and the Guarantee . . . are not intended to confer,and shall not be construed as conferring, upon any Person other than the parties hereto and thereto (and their respective successorsand permitted assigns) any rights, claims, actions or remedies hereunder or thereunder. Notwithstanding anything to the contrarycontained herein . . . the Debt Financing Sources are expressly intended as third party beneficiaries of the last sentence of thisSection 8.7 [Entire Agreement; Third-Party Beneficiaries] and Section 7.3(h) [Termination Fee], Section 8.3 [Amendment orSupplement], Section 8.8 [Governing Law; Jurisdiction], Section 8.9 [Remedies] and Section 8.10 [Waive of Jury Trial].22

Presentation Title/Client Name Other Financing Provisions in Merger Agreements23

Presentation Title/Client Name Financing Representations of the Purchaser Seller:– Wants to know that the Purchaser has commitmentsfor financing sufficient to close the acquisition.– Wants to know that it’s reviewed and is aware of allagreements related to the financing, and in particular isaware of all financing conditions.24

Presentation Title/Client Name Financing Representations of the Purchaser(continued) Representations that:– Purchaser has delivered true and complete copies ofcommitment letters and a redacted copy of fee letter(in description or definition of redacted fee letter, someagreements include a representation that the redactedportions do not adversely affect the conditionality oravailability of the debt financing).25

Presentation Title/Client Name Financing Representation of Purchaser(continued)– As of date of the purchase agreement, the commitmentletters are in full force and effect and enforceableagreements, and the Purchaser is not aware of anybreach or reason why financing conditions can’t besatisfied.– The Purchaser has provided to the Seller all side lettersor agreements related to the financing.– Some purchase agreements include an expressacknowledgement from the Purchaser that thePurchaser’s obligation to consummate the acquisitionis not contingent on the Purchaser obtaining financing.26

Presentation Title/Client Name Financing Representation of Purchaser(continued)– Proceeds from financing commitments will besufficient to close the acquisition. See Example 6. The Purchasers can only make this representationbased on specified assumptions (e.g., the Seller’srepresentations about outstanding indebtedness areaccurate and the Seller has not breached its interimcovenants).27

Presentation Title/Client Name Financing Representation of Purchaser(continued)Example 6(a)The aggregate proceeds of the Financing will be sufficient to enable Parent and Merger Sub to consummate the Merger on theterms contemplated by this Agreement, and to make all payments contemplated by this Agreement, including payment of theMerger Consideration, repayment or refinancing of any Indebtedness required as a result of the consummation of the Merger, andall fees and expenses in connection with the Merger and the other transactions contemplated hereby, assuming the satisfaction ofthe conditions in Section 7.01 [Conditions to Each Party’s Obligation to Effect the Merger] and Section 7.03 [Conditions toObligations of Parent and Merger Sub] and the accuracy of the representations and warranties set forth in Section 4.03(a)[Capital Structure].(b)Assuming (x) the accuracy of the representation and warranties set forth in Section 4.3 [Capitalization], Section 4.7(b) [SECReports; Financial Statements], Section 4.9 [Absence of Certain Changes or Events] and Section 4.20(a) (iv) and (y)[Contracts] the performance by the Company and its subsidiaries of the covenants set forth in Section 6.1(b)(ii) [Conduct ofBusiness of the Company Pending the Merger] and Section 6.1(b)(ix) [Conduct of Business of the Company Pending theMerger], the aggregate

Introduced in merger agreement between Affiliated Computer Services and Xerox Corporation in September 2009. Xerox provisions have since evolved and been refined (e.g. in ACS merger agreement, financing sources not express third party beneficiaries of jury trial waiver). -No Recourse Against Financing Sources -Limitation on Liability