and you. This Commitment Letter may be executed in any number of
counterparts, each of which shall be deemed an original and all of which, when
taken together, shall constitute one agreement. Delivery of an executed
counterpart of a signature page of this Commitment Letter by facsimile
transmission or other electronic transmission (i.e., a "pdf" or "tif") shall be
effective as delivery of a manually executed counterpart hereof. This Commitment
Letter (including the exhibits hereto) dated the date hereof and the Fee Letter,
(i) are the only agreements that have been entered into among the parties hereto
with respect to the Facility and the transactions contemplated by this
Commitment Letter and (ii) supersede all prior understandings, whether written
or oral, among us with respect to the Facility and set forth the entire
understanding of the parties hereto with respect thereto. THIS COMMITMENT
LETTER, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER, OR RELATED TO, THIS
COMMITMENT LETTER (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN
CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF) SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK; PROVIDED, HOWEVER, THAT THE LAWS OF THE STATE OF DELAWARE SHALL GOVERN IN
DETERMINING (A) THE INTERPRETATION OF A "COMPANY MATERIAL ADVERSE EFFECT" (AS
DEFINED IN THE ACQUISITION AGREEMENT) AND WHETHER A "COMPANY MATERIAL ADVERSE
EFFECT" HAS OCCURRED AND (B) WHETHER THE ACQUISITION HAS BEEN CONSUMMATED IN
ACCORDANCE WITH THE TERMS OF THE ACQUISITION AGREEMENT AND ALL OTHER ISSUES AND
QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, INTERPRETATION AND
ENFORCEABILITY OF THE ACQUISITION AGREEMENT AND THE EXHIBITS AND SCHEDULES
THERETO (IN
6
EACH CASE, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF, TO THE
EXTENT THAT THE SAME ARE NOT MANDATORILY APPLICABLE BY STATUTE AND WOULD REQUIRE
OR PERMIT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION).
Each of the parties hereto agrees that this Commitment Letter is a binding and
enforceable agreement (subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization and other similar laws relating to or
affecting creditors' rights generally and general principles of equity (whether
considered in a proceeding in equity or law)) with respect to the subject matter
contained herein, including an agreement of each party to negotiate in good
faith the Financing Documentation by the parties hereto in a manner consistent
with this Commitment Letter, it being acknowledged and agreed that the
commitments provided hereunder are subject only to conditions precedent as
expressly provided herein.
EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY OR ON BEHALF OF ANY PARTY
RELATED TO OR ARISING OUT OF THIS COMMITMENT LETTER OR THE PERFORMANCE OF
SERVICES HEREUNDER OR THEREUNDER.
Each of the parties hereto hereby irrevocably and unconditionally (a) submits,
for itself and its property, to the exclusive jurisdiction of any New York State
court or Federal court of the United States of America sitting in New York