the Commitment and agreements of MSSF, Barclays, Credit Suisse and MUFG
and the undertakings of MSSF, Barclays, Credit Suisse and MUFG set forth herein
will automatically terminate without further action or notice upon the earliest
to occur of (i) consummation of the Acquisition (with or without the use of the
Facilities), (ii) termination of the Acquisition Agreement in accordance with
its terms and (iii) five Business Days after the "End Date" (as defined in the
Acquisition Agreement).
11. Survival.
The sections of this Commitment Letter and the Fee Letters
relating to Indemnification, Expenses, Confidentiality, Information, Other
Services, Survival and Governing Law shall survive any termination or expiration
of this Commitment Letter, the Commitments of MSSF, Barclays, CS and MUFG or the
undertakings of MSSF, Barclays, Credit Suisse and MUFG set forth herein
(regardless of whether definitive Loan Documentation is executed and delivered),
and the section relating to Syndication shall survive until the Syndication
Date, at which time such obligations shall terminate and be of no further force
and effect; provided that your obligations under this Commitment Letter (other
than your obligations with respect to the sections of this Commitment Letter
relating to Syndication, Information, Confidentiality, Other Services, Survival
and Governing Law) shall automatically terminate and be superseded by the
provisions of the Loan Documentation upon the initial funding thereunder, to the
extent covered thereby, and you shall be released from all liability in
connection therewith at such time.
You may terminate this Commitment Letter and
the Initial Lender's commitments with respect to the Facilities hereunder in
full (but not in part) at any time subject to the provisions of the preceding
sentence. In addition, each Commitment Party's commitments hereunder to provide
and arrange the Bridge Facility will be automatically reduced to the extent
described herein by any issuance of the Notes and/or Securities (as defined in
the Fee Letter) (in escrow or otherwise) and other events as described under the
caption "Bridge Loans" in Annex C.
12. Governing Law.
THIS COMMITMENT LETTER AND THE FEE LETTERS, AND ANY CLAIM,
CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED THERETO (INCLUDING, WITHOUT
LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE
SUBJECT MATTER HEREOF OR THEREOF), SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 AND
SECTION 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT
REFERENCE TO ANY OTHER CONFLICTS OR CHOICE OF LAW PRINCIPLES THEREOF; PROVIDED
THAT, NOTWITHSTANDING THE FOREGOING TO THE CONTRARY, IT IS UNDERSTOOD AND AGREED
THAT ANY DETERMINATIONS AS TO (X) THE ACCURACY OF THE SPECIFIED ACQUISITION
AGREEMENT REPRESENTATIONS AND WHETHER ANY SPECIFIED ACQUISITION AGREEMENT
REPRESENTATIONS HAVE BEEN BREACHED AND WHETHER YOU (OR YOUR AFFILIATES) HAVE THE
RIGHT TO TERMINATE YOUR (OR THEIR) OBLIGATIONS PURSUANT TO SECTION 7.01(c) OF
THE ACQUISITION AGREEMENT OR TO DECLINE TO CONSUMMATE THE ACQUISITION PURSUANT
TO SECTION 6.02(a) OF THE ACQUISITION AGREEMENT AS A RESULT OF A BREACH OF ANY
SUCH SPECIFIED ACQUISITION