ANY CIRCUMSTANCES SET FORTH HEREIN
PROVIDING THAT THE BORROWER SHALL HAVE THE RIGHT TO REMOVE OR REPLACE A LENDER
AS A PARTY TO THIS AGREEMENT, THE BORROWER MAY, UPON NOTICE TO SUCH LENDER AND
THE AGENT, (I) REMOVE SUCH LENDER BY TERMINATING SUCH LENDER'S COMMITMENT OR
(II) REPLACE SUCH LENDER BY CAUSING SUCH LENDER TO ASSIGN ITS COMMITMENT
(WITHOUT PAYMENT OF ANY ASSIGNMENT FEE) PURSUANT TO SECTION 10.11.1 TO ONE OR
MORE OTHER LENDERS, COMMERCIAL BANKS, OTHER FINANCIAL INSTITUTIONS OR APPROVED
FUNDS PROCURED BY THE BORROWER.
THE BORROWER SHALL (X) PAY IN FULL ALL
PRINCIPAL, INTEREST, FEES AND OTHER AMOUNTS OWING TO SUCH LENDER THROUGH THE
DATE OF REMOVAL OR REPLACEMENT (INCLUDING ANY AMOUNTS PAYABLE PURSUANT TO
SECTION 4.4), (Y) PROVIDE APPROPRIATE ASSURANCES AND INDEMNITIES (WHICH MAY
INCLUDE LETTERS OF CREDIT) TO THE SWING LINE LENDER AS IT MAY REASONABLY REQUIRE
WITH RESPECT TO ANY CONTINUING OBLIGATION TO PURCHASE PARTICIPATION INTERESTS IN
ANY SWING LINE LOANS THEN OUTSTANDING, AND (Z) RELEASE SUCH LENDER FROM ITS
OBLIGATIONS UNDER THE LOAN DOCUMENTS.
ANY LENDER BEING REPLACED SHALL EXECUTE
AND DELIVER A LENDER ASSIGNMENT AGREEMENT WITH RESPECT TO SUCH LENDER'S
COMMITMENT AND LOANS.
THE AGENT SHALL DISTRIBUTE A SCHEDULE, WHICH SHALL BE
DEEMED INCORPORATED INTO THIS AGREEMENT, TO REFLECT CHANGES IN THE IDENTITIES OF
THE LENDERS AND ADJUSTMENTS OF THEIR RESPECTIVE COMMITMENTS AND/OR PERCENTAGE
RESULTING FROM ANY SUCH REMOVAL OR REPLACEMENT.
(B)
IN ORDER TO MAKE ALL THE LENDERS' INTERESTS
IN ANY OUTSTANDING LOANS RATABLE IN ACCORDANCE WITH ANY REVISED PERCENTAGES
AFTER GIVING EFFECT TO THE REMOVAL OR REPLACEMENT OF A LENDER, THE BORROWER
SHALL PAY OR PREPAY, IF NECESSARY, ON THE EFFECTIVE DATE THEREOF, ALL
OUTSTANDING LOANS OF ALL LENDERS, TOGETHER WITH ANY AMOUNTS DUE UNDER
SECTION 4.4.
THE BORROWER MAY THEN REQUEST LOANS FROM THE LENDERS IN ACCORDANCE
WITH THEIR REVISED PERCENTAGES.
THE BORROWER MAY NET ANY PAYMENTS REQUIRED
HEREUNDER AGAINST ANY FUNDS BEING PROVIDED BY ANY LENDER COMMERCIAL BANK, OTHER
FINANCIAL INSTITUTION OR APPROVED FUND REPLACING A TERMINATING LENDER.
THE
EFFECT FOR PURPOSES OF THIS AGREEMENT SHALL BE THE SAME AS IF SEPARATE TRANSFERS
OF FUNDS HAD BEEN MADE WITH RESPECT THERETO.
(C)
THIS SECTION SHALL SUPERSEDE ANY PROVISION
IN SECTION 10.1 TO THE CONTRARY.
63
SECTION 10.14.
FORUM SELECTION AND CONSENT TO JURISDICTION.
ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE AGENT, THE LENDERS OR THE BORROWER
SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW
YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK.
THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION
OF THE COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS
SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT