ARBITRATION OR OTHER PROCEEDINGS AGAINST THE SELLING PARTIES TO
ENFORCE SUCH RIGHTS AND REMEDIES, WHICH SHALL BE PROSECUTED ACCORDING TO DLJMB'S
INSTRUCTIONS AND, AT DLJMB'S ELECTION, BY COUNSEL SELECTED AND RETAINED BY DLJMB
IN ITS REASONABLE DISCRETION; PROVIDED, HOWEVER, THAT DLJMB SHALL NOT SETTLE
SUCH LITIGATION, ARBITRATION OR PROCEEDINGS WITHOUT MORGANS' CONSENT, WHICH
CONSENT SHALL NOT BE UNREASONABLY WITHHELD, DELAYED OR CONDITIONED.
THE COSTS
AND EXPENSES INCURRED BY MORGANS TO PROSECUTE SUCH LITIGATION, ARBITRATION OR
PROCEEDINGS SHALL BE PROMPTLY REIMBURSED BY DLJMB; PROVIDED, THAT IF ALL OR ANY
PORTION OF THE ESCROW DEPOSITS ARE RETURNED TO THE MORGANS PARTIES AS A RESULT
OF THE CONCLUSION OR SETTLEMENT OF SUCH LITIGATION, ARBITRATION OR OTHER
PROCEEDINGS, THEN THE PARTIES SHALL EQUALLY BEAR THE COSTS AND EXPENSES THEREOF
(AND MORGANS SHALL PROMPTLY AFTER SUCH CONCLUSION OR SETTLEMENT PAY TO DLJMB
ONE-HALF OF ANY SUCH COSTS AND EXPENSES PREVIOUSLY REIMBURSED BY DLJMB).
7.4.
ACTIONS WITH RESPECT TO DEBT FINANCING.
THE MORGANS PARTIES WILL
PERFORM ALL OBLIGATIONS REQUIRED TO BE PERFORMED BY THEM IN ACCORDANCE WITH AND
PURSUANT TO THE CREDIT FACILITY COMMITMENT LETTER, WILL USE THEIR COMMERCIALLY
REASONABLE EFFORTS TO MAINTAIN THE SAME IN FULL FORCE AND EFFECT, AND WILL NOT
AMEND, TERMINATE OR WAIVE ANY MATERIAL PROVISIONS UNDER SUCH CREDIT FACILITY
COMMITMENT LETTER WITHOUT THE PRIOR WRITTEN CONSENT OF DLJMB, WHICH CONSENT
SHALL NOT BE UNREASONABLY WITHHELD, DELAYED OR CONDITIONED (IT BEING UNDERSTOOD
THAT ANY FAILURE BY DLJMB TO APPROVE MATERIAL CHANGES TO THE ECONOMIC TERMS OF
THE DEBT FINANCING SHALL NOT BE DEEMED TO BE UNREASONABLE).
DLJMB AND MORGANS
SHALL REASONABLY COOPERATE WITH EACH OTHER IN (A) SEEKING A COMMITMENT LETTER
FROM COLUMN WITH RESPECT TO THE DEBT FINANCING CONTEMPLATED IN THE PERMANENT
FINANCING TERM SHEET; (B) NEGOTIATING DEFINITIVE DOCUMENTATION REGARDING SUCH
DEBT FINANCING AND ANY SUBSTITUTE OR ADDITIONAL FINANCING; (C) PROVIDING SUCH
INFORMATION AS THE OTHER MAY REASONABLY REQUEST REGARDING THE STATUS OF SUCH
FINANCING AND NEGOTIATIONS; AND (D) CAUSING THE DEBT FINANCING CONTEMPLATED BY
THE PERMANENT FINANCING TERM SHEET TO BE FUNDED ON THE CLOSING DATE.
WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING CLAUSE (A), BUT SUBJECT TO THE NEXT TWO
SENTENCES, DLJMB OR AN AFFILIATE OF DLJMB (AS REQUIRED BY THE LENDER) AND
MORGANS AGREE TO PROVIDE, ON A JOINT AND SEVERAL BASIS (TO THE EXTENT REQUIRED),
THE GUARANTEES AND OTHER ASSURANCES CONTEMPLATED BY THE CREDIT FACILITY
COMMITMENT LETTER,
18
INCLUDING, WITHOUT LIMITATION, ANY CUSTOMARY NON-RECOURSE ("BAD BOY") ASSURANCES
THAT ANY LENDER OR OTHER FINANCING SOURCE UNDER THE CREDIT FACILITY COMMITMENT
LETTER MAY REQUEST; PROVIDED THAT THE PARTIES SHALL ENTER INTO THE INDEMNITY
AGREEMENT WHICH SHALL GOVERN EACH PARTY'S LIABILITIES TO THE OTHER WITH RESPECT
TO SUCH ASSURANCES.
WITH RESPECT TO THE COMPLETION GUARANTY REFERRED TO IN THE
PERMANENT FINANCING TERM SHEET, EACH OF MORGANS AND DLJMB OR AN AFFILIATE OF
DLJMB (AS REQUIRED BY THE LENDER) SHALL SHARE RATABLY IN ANY LIABILITY UNDER
SUCH COMPLETION GUARANTY IN ACCORDANCE WITH THEIR PERCENTAGE INTERESTS (AS
DEFINED IN THE LLC AGREEMENT) PROVIDED, HOWEVER, THAT MORGANS WILL BE
RESPONSIBLE FOR THE