OF THE CREDIT DOCUMENTS
BY BORROWER AND THE LENDERS AND (D) IF ANY EVENT OCCURS OR INFORMATION BECOMES
AVAILABLE THAT RESULTS IN THE INCURABLE FAILURE TO SATISFY ANY CONDITION SET
FORTH OR REFERRED TO IN SECTION 4 OF THIS COMMITMENT LETTER. NOTWITHSTANDING THE
FOREGOING, THE PROVISIONS OF SECTIONS 6, 7, 8, 10 AND 11 HEREOF SHALL SURVIVE
ANY TERMINATION PURSUANT TO THIS SECTION 9.
10.
ASSIGNMENT; NO FIDUCIARY; ETC. THIS COMMITMENT LETTER AND OUR
SEVERAL COMMITMENTS HEREUNDER SHALL NOT BE ASSIGNABLE BY ANY PARTY HERETO (OTHER
THAN BY US TO OUR AFFILIATES) WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER
PARTIES HERETO, AND ANY ATTEMPTED ASSIGNMENT SHALL BE VOID AND OF NO EFFECT;
PROVIDED, HOWEVER, THAT NOTHING CONTAINED IN THIS SECTION 10 SHALL PROHIBIT US
(IN OUR SOLE DISCRETION) FROM (I) PERFORMING ANY OF OUR DUTIES HEREUNDER THROUGH
ANY OF OUR AFFILIATES, AND YOU WILL OWE ANY RELATED DUTIES (INCLUDING THOSE SET
FORTH IN SECTION 2 ABOVE) TO ANY SUCH AFFILIATE, AND (II) GRANTING (IN
CONSULTATION WITH YOU) PARTICIPATIONS IN, OR SELLING (IN CONSULTATION WITH YOU)
ASSIGNMENTS OF ALL OR A PORTION OF, THE COMMITMENTS OR THE LOANS UNDER THE
CREDIT FACILITIES PURSUANT TO ARRANGEMENTS SATISFACTORY TO US. THIS COMMITMENT
LETTER IS SOLELY FOR THE BENEFIT OF THE PARTIES HERETO AND DOES NOT CONFER ANY
BENEFITS UPON, OR CREATE ANY RIGHTS IN FAVOR OF, ANY OTHER PERSON.
IN CONNECTION WITH ALL ASPECTS OF EACH TRANSACTION CONTEMPLATED BY THIS
COMMITMENT LETTER, YOU ACKNOWLEDGE AND AGREE, AND ACKNOWLEDGE YOUR AFFILIATES'
UNDERSTANDING, THAT (I) EACH TRANSACTION CONTEMPLATED BY THIS COMMITMENT LETTER
IS AN ARM'S-LENGTH COMMERCIAL TRANSACTION, BETWEEN BORROWER, ON THE ONE HAND,
AND EACH INITIAL LENDER, ON THE OTHER HAND, (II) IN CONNECTION WITH EACH SUCH
TRANSACTION AND THE PROCESS LEADING THERETO EACH INITIAL LENDER WILL ACT SOLELY
AS A PRINCIPAL AND NOT AS AGENT (EXCEPT AS OTHERWISE PROVIDED HEREIN) OR
FIDUCIARY OF BORROWER OR ITS RESPECTIVE STOCKHOLDERS, AFFILIATES, CREDITORS,
EMPLOYEES OR ANY OTHER PARTY, (III) NO INITIAL LENDER WILL ASSUME AN ADVISORY OR
FIDUCIARY RESPONSIBILITY IN FAVOR OF BORROWER OR ANY OF ITS AFFILIATES OR
STOCKHOLDERS WITH RESPECT TO ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THE
PROCESS LEADING THERETO (IRRESPECTIVE OF WHETHER AN INITIAL LENDER HAS ADVISED
OR IS CURRENTLY ADVISING BORROWER ON OTHER MATTERS) AND NO INITIAL LENDER WILL
HAVE ANY OBLIGATION TO BORROWER OR ANY OF ITS AFFILIATES OR STOCKHOLDERS WITH
RESPECT TO THE TRANSACTIONS CONTEMPLATED IN THIS COMMITMENT LETTER EXCEPT THE
OBLIGATIONS EXPRESSLY SET FORTH HEREIN, (IV) EACH
6
INITIAL LENDER MAY BE ENGAGED IN A BROAD RANGE OF TRANSACTIONS THAT INVOLVE
INTERESTS THAT DIFFER FROM THOSE OF BORROWER AND ITS AFFILIATES AND
STOCKHOLDERS, AND (V) NO INITIAL LENDER HAS PROVIDED AND NO INITIAL LENDER WILL
PROVIDE AND LEGAL, ACCOUNTING, REGULATORY OR TAX ADVICE WITH RESPECT TO ANY OF
THE TRANSACTIONS CONTEMPLATED HEREBY AND BORROWER HAS CONSULTED AND WILL CONSULT
ITS OWN LEGAL, ACCOUNTING, REGULATORY, AND TAX ADVISORS TO THE EXTENT IT DEEMS
APPROPRIATE. THE MATTERS SET FORTH IN THIS COMMITMENT LETTER REFLECT AN
ARM'S-LENGTH COMMERCIAL TRANSACTION