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EXHIBIT 10.6
Conformed Copy
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ATC HOLDINGS CORP.
PLEDGE AGREEMENT
Dated as of October 11, 1996
THE FIRST NATIONAL BANK OF BOSTON, as Managing Agent
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TABLE OF CONTENTS
Page
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1. Credit Agreement; Certain Rules of Construction; Definitions. . . . . . . 1
1.1. "Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2. "Credit Security" . . . . . . . . . . . . . . . . . . . . . . . 1
1.3. "Pledged Indebtedness" . . . . . . . . . . . . . . . . . . . . 1
1.4. "Pledged Securities" . . . . . . . . . . . . . . . . . . . . . 1
1.5. "Pledged Stock" . . . . . . . . . . . . . . . . . . . . . . . . 1
1.6. "UCC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2. Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.1. Credit Security . . . . . . . . . . . . . . . . . . . . . . . . 2
2.1.1. Pledged Stock . . . . . . . . . . . . . . . . . . . . 2
2.1.3. Proceeds and Products . . . . . . . . . . . . . . . . . 2
2.1.4. Excluded Property . . . . . . . . . . . . . . . . . . 2
2.2. Representations, Warranties and Covenants with
Respect to Credit Security . . . . . . . . . . . . . . . . . . 2
2.2.1. Pledged Stock . . . . . . . . . . . . . . . . . . . . 3
2.2.2. Pledged Indebtedness . . . . . . . . . . . . . . . . . 3
2.2.3. No Liens or Restrictions on Transfer or Change of Control 3
2.3. Administration of Credit Security . . . . . . . . . . . . . . . 3
2.3.1. Deposits; Accounts . . . . . . . . . . . . . . . . . . 3
2.3.2. Pledged Stock . . . . . . . . . . . . . . . . . . . . 4
2.4. Right to Realize upon Credit Security . . . . . . . . . . . . . 4
2.4.1. General Authority . . . . . . . . . . . . . . . . . . 4
2.4.2. Marshaling, etc. . . . . . . . . . . . . . . . . . . . 5
2.4.3. Sales of Credit Security . . . . . . . . . . . . . . . 6
2.4.4. Sale without Registration . . . . . . . . . . . . . . 6
2.4.5. Application of Proceeds . . . . . . . . . . . . . . . 7
2.5. Custody of Credit Security . . . . . . . . . . . . . . . . . . 8
3. Representations and Warranties . . . . . . . . . . . . . . . . . . . . . 8
3.1. Organization and Business . . . . . . . . . . . . . . . . . . . 8
3.2. Authorization and Enforceability . . . . . . . . . . . . . . . 8
3.3. No Legal Obstacle to Agreements . . . . . . . . . . . . . . . . 8
4. Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . 9
6. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7. Venue; Service of Process . . . . . . . . . . . . . . . . . . . . . . . . 9
8. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . 10
9. General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 00
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XXX XXXXXXXX XXXX.
PLEDGE AGREEMENT
This Agreement, dated as of October 11, 1996, is between ATC Holdings
Corp., a Delaware corporation ("ATC Holdings" or the "Pledgor") and The First
National Bank of Boston, as managing agent (the "Managing Agent") for itself
and the other Lenders under the Credit Agreement (as defined below). The
parties agree as follows:
1. Credit Agreement; Certain Rules of Construction; Definitions. The
Lenders are providing loans to ATC Tower Corp., a Delaware corporation (the
"Company"), pursuant to a Credit Agreement dated as of the date hereof, as from
time to time in effect (the "Credit Agreement"), among the Company, its
Subsidiaries from time to time party thereto, the Lenders and the Managing
Agent. As a condition to providing the loans under the Credit Agreement, the
Lenders are requiring the Pledgor to pledge the stock and indebtedness
contemplated hereby to secure the payment of the Credit Obligations.
Capitalized terms defined in the Credit Agreement and not otherwise defined
herein are used herein with the meanings so defined. Certain other capitalized
terms are used in this Agreement as specifically defined below in this Section
1. Except as the context otherwise explicitly requires, (a) the capitalized
term "Section" refers to sections of this Agreement, (b) the capitalized term
"Exhibit" refers to exhibits to this Agreement, (c) references to a particular
Section shall include all subsections thereof, (d) the word "including" shall
be construed as "including without limitation", (e) terms defined in the UCC
and not otherwise defined herein have the meaning provided under the UCC, (f)
references to a particular statute or regulation include all rules and
regulations thereunder and any successor statute, regulation or rules, in each
case as from time to time in effect and (g) references to a particular Person
include such Person's successors and assigns to the extent not prohibited by
this Agreement and the other Credit Documents. References to "the date hereof"
mean the date first set forth above.
1.1. "Agreement" means this Pledge Agreement as amended,
modified and from time to time in effect.
1.2. "Credit Security" is defined in Section 2.1.
1.3. "Pledged Indebtedness" is defined in Section 2.1.2.
1.4. "Pledged Securities" is defined in Section 2.1.2.
1.5. "Pledged Stock" is defined in Section 2.1.1.
1.6. "UCC" means the Uniform Commercial Code as in effect in
Massachusetts on the date hereof; provided, however, that with respect to the
perfection of the Managing Agent's
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Lien in the Credit Security and the effect of nonperfection thereof, the term
"UCC" means the Uniform Commercial Code as in effect in any jurisdiction the
laws of which are made applicable by section 9-103 of the Uniform Commercial
Code as in effect in Massachusetts.
2. Security.
2.1. Credit Security. As security for the payment and
performance of the Credit Obligations, the Pledgor mortgages, pledges and
collaterally grants and assigns to the Managing Agent for the benefit of the
Lenders and the holders from time to time of any Credit Obligation, and creates
a security interest in favor of the Managing Agent for the benefit of the
Lenders and such holders in, all of the Pledgor's right, title and interest in
and to (but none of its obligations or liabilities with respect to) the items
and types of present and future property described in Sections 2.1.1 through
2.1.3 (subject, however, to Section 2.1.4), whether now owned or hereafter
acquired, all of which shall be included in the term "Credit Security":
2.1.1. Pledged Stock. (a) All shares of capital
stock or other evidence of beneficial interest in any
corporation, business trust or limited liability company, (b) all
limited partnership interests in any limited partnership, (c) all
general partnership interests in any general partnership, (d) all
joint venture interests in any joint venture and (e) all options,
warrants and similar rights to acquire such capital stock or such
interests. All such capital stock, interests, options, warrants
and other rights are collectively referred to as the "Pledged
Stock".
2.1.2. Pledged Indebtedness. All Indebtedness from
time to time owing to the Pledgor from the Company or any of its
Subsidiaries. All such Indebtedness is referred to as the
"Pledged Indebtedness". The Pledged Stock and the Pledged
Indebtedness are collectively referred to as the "Pledged
Securities".
2.1.3. Proceeds and Products. All proceeds, including
insurance proceeds, and products of the items of Credit Security
described or referred to in Section 2.1.1 and 2.1.2, and to the
extent not included in the foregoing, all Distributions with
respect to the Pledged Stock.
2.1.4. Excluded Property. Notwithstanding Sections
2.1.1 through 2.1.3, the payment and performance of the Credit
Obligations shall not be secured by more than 66% of the
outstanding stock or other equity in any Subsidiary organized
under the laws of, and operating solely in, a country other than
the United States of America.
2.2. Representations, Warranties and Covenants with Respect to
Credit Security. The Pledgor represents, warrants and covenants that:
2.2.1. Pledged Stock. All shares of capital stock,
limited partnership interests and similar securities included in
the Pledged Stock are and shall be at all times duly
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authorized, validly issued, fully paid and (in the case of
capital stock and limited partnership interests) nonassessable.
The Pledgor will deliver to the Managing Agent certificates
representing the Pledged Stock, registered, if the Managing Agent
so requests, in the name of the Managing Agent or its nominee, as
pledgee, or accompanied by a stock transfer power executed in
blank and, if the Managing Agent so requests, with the signature
guaranteed, all in form and manner satisfactory to the Managing
Agent. Pledged Stock that is not evidenced by a certificate will
be registered in the Managing Agent's name as pledgee on the
issuer's records, all in form and substance satisfactory to the
Managing Agent. The Managing Agent may at any time transfer into
its name or the name of its nominee, as pledgee, any Pledged
Stock. In the event the Pledged Stock includes any Margin Stock,
the Pledgor will furnish to the Lenders Federal Reserve Form U-1
and take such other action as the Managing Agent may request to
ensure compliance with applicable laws.
2.2.2. Pledged Indebtedness. All Pledged Indebtedness
shall be on open account and shall not be evidenced by any note
or other instrument; provided, however, that all Pledged
Indebtedness shall, if the Managing Agent requests, be evidenced
by a promissory note. The Pledgor will, immediately upon the
receipt thereof, deliver to the Managing Agent any promissory
note or similar instrument representing any Pledged Indebtedness,
after having endorsed such promissory note or instrument in
blank.
2.2.3. No Liens or Restrictions on Transfer or Change
of Control. All Credit Security shall be free and clear of any
Liens and restrictions on the transfer thereof. None of the
Pledged Stock is subject to any option to purchase or similar
rights of any Person. Except with the written consent of the
Managing Agent, the Pledgor is not, nor will be, party to or
bound by any agreement, instrument, deed or lease that restricts
the change of control or ownership, or the creation of a security
interest in the ownership, of the Company or any of its
Subsidiaries.
2.3. Administration of Credit Security. The Credit Security
shall be administered as follows, and if an Event of Default shall have
occurred, Section 2.4 shall also apply.
2.3.1. Deposits; Accounts. To the extent specified by
prior written notice from the Managing Agent after the occurrence
and during the continuance of an Event of Default, all sums
collected or received and all property recovered or possessed by
the Pledgor in connection with any Credit Security shall be
received and held by the Pledgor in trust for and on the Lenders'
behalf, shall be segregated from the assets and funds of the
Pledgor, and shall be delivered to the Managing Agent for the
benefit of the Lenders.
2.3.2. Pledged Stock.
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(a) Distributions. Until an Event of Default
shall occur, the Pledgor shall be entitled to receive all
Distributions on or with respect to the Pledged Stock
(other than Distributions constituting additional Pledged
Stock). All Distributions constituting additional Pledged
Stock will be retained by the Managing Agent (or if
received by the Pledgor shall be held by the Pledgor in
trust and shall be immediately delivered by the Pledgor to
the Managing Agent in the original form received, endorsed
in blank) and held by the Managing Agent as part of the
Credit Security.
(b) If an Event of Default shall have occurred,
all Distributions on or with respect to the Pledged Stock
shall be retained by the Managing Agent (or if received by
the Pledgor shall be held by the Pledgor in trust and
shall be immediately delivered by it to the Managing Agent
in the original form received, endorsed in blank) and held
by the Managing Agent as part of the Credit Security or
applied by the Managing Agent to the payment of the Credit
Obligations in accordance with Section 2.4.6.
2.3.3. Voting.
(a) Until an Event of Default shall occur, the
Pledgor shall be entitled to vote or consent with respect
to the Pledged Stock in any manner not inconsistent with
the terms of any Credit Document, and the Managing Agent
will, if so requested, execute appropriate revocable
proxies therefor.
(b) If an Event of Default shall have occurred,
if and to the extent that the Managing Agent shall so
notify the Pledgor in writing, only the Managing Agent
shall be entitled to vote or consent or take any other
action with respect to the Pledged Stock (and the Pledgor
will, if so requested, execute or cause to be executed
appropriate proxies therefor).
2.4. Right to Realize upon Credit Security. Except to
the extent prohibited by applicable law that cannot be waived, this
Section 2.4 shall govern the Lenders' right to realize upon the Credit
Security if any Event of Default shall have occurred. The provisions of
this Section 2.4 are in addition to any rights and remedies available at
law or in equity and in addition to the provisions of any other Credit
Document. In the case of a conflict between this Section 2.4 and any
other Credit Document, this Section 2.4 shall govern.
2.4.1. General Authority. To the extent
specified in written notice from the Managing Agent to the
Pledgor, the Pledgor grants the Managing Agent full and
exclusive power and authority, subject to the other terms
hereof and applicable law, to take any of the following
actions (for the sole benefit of the Managing Agent on
behalf of the Lenders and the holders from time to time of
any Credit Obligations, but at the Pledgor's expense):
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(a) To ask for, demand, take, collect, xxx for
and receive all payments in respect of any Pledged
Securities which the Pledgor could otherwise ask for,
demand, take, collect, xxx for and receive for its own
use.
(b) To extend the time of payment of any Pledged
Stock and to make any allowance or other adjustment with
respect thereto.
(c) To settle, compromise, prosecute or defend
any action or proceeding with respect to any Pledged Stock
and to enforce all rights and remedies thereunder which
the Pledgor could otherwise enforce.
(d) To enforce the payment of any Pledged Stock,
either in the name of the Pledgor or in its own name, and
to endorse the name of the Pledgor on all checks, drafts,
money orders and other instruments tendered to or received
in payment of any Credit Security.
(e) To notify the third party payor with respect
to any Pledged Security of the existence of the security
interest created hereby and to cause all payments in
respect thereof thereafter to be made directly to the
Managing Agent; provided, however, that whether or not the
Managing Agent shall have so notified such payor, the
Pledgor will at its expense render all reasonable
assistance to the Managing Agent in collecting such items
and in enforcing claims thereon.
(f) To sell, transfer, assign or otherwise deal
in or with any Credit Security or the proceeds thereof, as
fully as the Pledgor otherwise could do.
2.4.2. Marshaling, etc. Neither the Managing
Agent nor the Lenders shall be required to make any demand
upon, or pursue or exhaust any of their rights or remedies
against, the Pledgor or any other guarantor, pledgor or
any other Person with respect to the payment of the Credit
Obligations or to pursue or exhaust any of their rights or
remedies with respect to any collateral therefor or any
direct or indirect guarantee thereof. Neither the
Managing Agent nor the Lenders shall be required to
marshal the Credit Security or any guarantee of the Credit
Obligations or to resort to the Credit Security or any
such guarantee in any particular order, and all of its and
their rights hereunder or under any other Credit Document
shall be cumulative. To the extent it may lawfully do so,
the Pledgor absolutely and irrevocably waives and
relinquishes the benefit and advantage of, and covenants
not to assert against the Managing Agent or the Lenders,
any valuation, stay, appraisement, extension, redemption
or similar laws now or hereafter existing which, but for
this provision, might be applicable to the sale of any
Credit Security made under the judgment, order or decree
of any court, or privately under the power of sale
conferred by this Agreement, or otherwise. Without
limiting the generality of the foregoing, the Pledgor (a)
agrees that it will not invoke or utilize any law which
might prevent, cause a delay
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in or otherwise impede the enforcement of the rights of
the Managing Agent or any Lender in the Credit Security,
(b) waives all such laws, and (c) agrees that it will not
invoke or raise as a defense to any enforcement by the
Managing Agent or any Lender of any rights and remedies
relating to the Credit Security or the Credit Obligations
any legal or contractual requirement with which the
Managing Agent or any Lender may have in good faith failed
to comply. In addition, the Pledgor waives any right to
prior notice (except to the extent expressly required by
this Agreement) or judicial hearing in connection with
foreclosure on or disposition of any Credit Security,
including any such right which the Pledgor would otherwise
have under the Constitution of the United States of
America, any state or territory thereof or any other
jurisdiction.
2.4.3. Sales of Credit Security. All or any
part of the Credit Security may be sold for cash or other
value in any number of lots at public or private sale,
without demand, advertisement or notice; provided,
however, that unless the Credit Security to be sold
threatens to decline speedily in value or is of a type
customarily sold on a recognized market, the Managing
Agent shall give the Pledgor 10 days' prior written notice
of the time and place of any public sale, or the time
after which a private sale may be made, which notice each
of the Pledgors and the Lenders hereby agree to be
reasonable. At any sale or sales of Credit Security, any
Lender or any of its respective officers acting on its
behalf, or such Lender's assigns, may bid for and purchase
all or any part of the property and rights so sold, may
use all or any portion of the Credit Obligations owed to
such Lender as payment for the property or rights so
purchased, and upon compliance with the terms of such sale
may hold and dispose of such property and rights without
further accountability to the Pledgor, except for the
proceeds of such sale or sales pursuant to Section 2.4.6.
The Pledgor acknowledges that any such sale will be made
by the Managing Agent on an "as is" basis with disclaimers
of all warranties, whether express or implied. The
Pledgor will execute and deliver or cause to be executed
and delivered such instruments, documents, assignments,
waivers, certificates and affidavits, will supply or cause
to be supplied such further information and will take such
further action as the Managing Agent shall request in
connection with any such sale.
2.4.4. Sale without Registration. If, at any
time when the Managing Agent shall determine to exercise
its rights hereunder to sell all or part of the securities
included in the Credit Security, the securities in
question shall not be effectively registered under the
Securities Act (or other applicable law), the Managing
Agent may, in its sole discretion, sell such securities by
private or other sale not requiring such registration in
such manner and in such circumstances as the Managing
Agent may deem necessary or advisable in order that such
sale may be effected in accordance with applicable
securities laws without such registration and the related
delays, uncertainty and expense. Without limiting the
generality of the foregoing, in any event the Managing
Agent may, in its sole discretion, (a) approach and
negotiate with a single purchaser or one or more possible
purchasers to effect such sale, (b) restrict such sale
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to one or more purchasers each of whom will represent and agree
that such purchaser is purchasing for its own account, for
investment and not with a view to the distribution or sale of
such securities and (c) cause to be placed on certificates
representing the securities in question a legend to the effect
that such securities have not been registered under the
Securities Act (or other applicable law) and may not be disposed
of in violation of the provisions thereof. The Pledgor agrees
that such manner of disposition is commercially reasonable, that
it will upon the Managing Agent's request give any such purchaser
access to such information regarding the issuer of the securities
in question as the Managing Agent may reasonably request and that
the Managing Agent and the Lenders shall not incur any
responsibility for selling all or part of the securities included
in the Credit Security at any private or other sale not requiring
such registration, notwithstanding the possibility that a
substantially higher price might be realized if the sale were
deferred until after registration under the Securities Act (or
other applicable law) or until made in compliance with certain
other rules or exemptions from the registration provisions under
the Securities Act (or other applicable law). The Pledgor
acknowledges that no adequate remedy at law exists for breach by
it of this Section 2.4.5 and that such breach would not be
adequately compensable in damages and therefore agrees that this
Section 2.4.5 may be specifically enforced.
2.4.5. Application of Proceeds. The proceeds of all
sales and collections in respect of any Credit Security or other
assets of the Pledgor, all funds collected from the Pledgor and
any cash contained in the Credit Security, the application of
which is not otherwise specifically provided for herein, shall be
applied as follows:
First, to the payment of the costs and expenses of such
sales and collections, the reasonable expenses of the Managing
Agent and the reasonable fees and expenses of its special
counsel;
Second, any surplus then remaining to the payment of the
Credit Obligations in such order and manner as the Managing Agent
may in its sole discretion determine; provided, however, that any
such payment of Credit Obligations owed to all Lenders shall be
pro rata in accordance with the respective Percentage Interests
of the Lenders; and
Third, any surplus then remaining shall be paid to the
Pledgor, subject, however, to the rights of the holder of any
then existing Lien of which the Managing Agent has actual notice.
2.5. Custody of Credit Security. Except as provided by
applicable law that cannot be waived, the Managing Agent will have no duty as
to the custody and protection of the Credit Security, the collection of any
part thereof or of any income thereon or the preservation or exercise of any
rights pertaining thereto, including rights against prior parties, except for
the
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use of reasonable care in the custody and physical preservation of any Credit
Security in its possession. The Lenders will not be liable or responsible for
any loss or damage to any Credit Security, or for any diminution in the value
thereof, by reason of the act or omission of any agent selected by the Managing
Agent acting in good faith.
3. Representations and Warranties. In order to induce the Lenders to extend
credit under the Credit Agreement, the Pledgor represents and warrants that:
3.1. Organization and Business. The Pledgor is a duly
organized and validly existing corporation, in good standing under the laws of
the State of Delaware, with all power and authority, corporate or otherwise,
necessary (a) to enter into and perform this Agreement and each other Credit
Document to which it is a party and (b) to own its properties and carry on the
business now conducted or proposed to be conducted by it. Certified copies of
the Charter and By-laws of the Pledgor have been previously delivered to the
Managing Agent and are correct and complete.
3.2. Authorization and Enforceability. The Pledgor has taken
all corporate action required to execute, deliver and perform this Agreement
and each other Credit Document to which it is a party. Each of this Agreement
and each other Credit Document to which the Pledgor is party constitutes the
legal, valid and binding obligation of the Pledgor, enforceable against the
Pledgor in accordance with its terms.
3.3. No Legal Obstacle to Agreements. Neither the execution,
delivery and performance of this Agreement or any other Credit Document to
which it is party, nor the consummation of any transaction referred to in or
contemplated by this Agreement or any other Credit Document, has constituted or
resulted, or will constitute or result, in:
(a) Any breach or termination of the provisions of any
agreement, instrument, deed or lease to which the Pledgor is a
party or by which either is bound, or of the Charter or By-laws
of the Pledgor; or
(b) The violation of any law, statute, judgment, decree
or governmental order, rule or regulation applicable to the
Pledgor.
No approval, authorization or other action by, or declaration to or filing
with, any governmental or administrative authority or any other Person is
required to be obtained or made by the Pledgor in connection with the
execution, delivery and performance of this Agreement or any other Credit
Document to which either Pledgor is party or the transactions contemplated
hereby or thereby.
4. Defeasance. When all Credit Obligations have been paid, performed and
reasonably determined by the Lenders to have been indefeasibly discharged in
full, and if at the time no Lender continues to be committed to extend any
credit to the Company under the Credit
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Agreement or any other Credit Document, this Agreement shall terminate and, at
the written request of the Pledgor, accompanied by such certificates and other
items as the Managing Agent shall reasonably deem necessary, any Credit
Security pledged by the Pledgor shall revert to the Pledgor and the right,
title and interest of the Lenders therein shall terminate. Thereupon, on
demand of the Pledgor and at its cost and expense, the Managing Agent shall
execute proper instruments, acknowledging satisfaction of and discharging this
Agreement, and shall redeliver to the Pledgor any Credit Security then in its
possession.
5. Successors and Assigns. The provisions of this Agreement shall inure
to the benefit of the Lenders and their successors and assigns and shall be
binding upon the Pledgor and its respective successors and assigns. The
Pledgor may not assign its rights or obligations under this Agreement without
the written consent of the Managing Agent.
6. Notices. Any notice or other communication in connection with this
Agreement shall be deemed to be given if given in writing (including telex,
telecopy or similar teletransmission) addressed as provided below (or to the
addressee at such other address as the addressee shall have specified by notice
actually received by the addressor), and if either (a) actually delivered in
fully legible form to such address (evidenced in the case of a telex by receipt
of the correct answerback) or (b) in the case of a letter, five business days
shall have elapsed after the same shall have been deposited in the United
States mails, with first-class postage prepaid and registered or certified.
If to the Pledgor, to the Company at its address set forth in Exhibit
7.1 to the Credit Agreement (as supplemented pursuant to Sections 6.4.1 and
6.4.2 of the Credit Agreement), to the attention of the chief financial
officer.
If to the Managing Agent, to it at its address specified in or pursuant
to Section 16 of the Credit Agreement.
7. Venue; Service of Process.
(a) The Pledgor irrevocably submits to the nonexclusive
jurisdiction of the state courts of The Commonwealth of Massachusetts
and to the nonexclusive jurisdiction of the United States District Court
for the District of Massachusetts for the purpose of any suit, action or
other proceeding arising out of or based upon this Agreement or any
other Credit Document or the subject matter hereof or thereof; and
(b) The Pledgor waives to the extent not prohibited by
applicable law, and agrees not to assert, by way of motion, as a defense
or otherwise, in any such proceeding brought in any of the above-named
courts, any claim that it is not subject personally to the jurisdiction
of such court, that its property is exempt or immune from attachment or
execution, that such proceeding is brought in an inconvenient forum,
that the venue of any such proceeding is improper, or that this
Agreement or any other
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Credit Document, or the subject matter hereof or thereof, may not be
enforced in or by such court.
The Pledgor consents to service of process in any such proceeding in any manner
permitted by Chapter 223A of the General Laws of The Commonwealth of
Massachusetts and agrees that service of process by registered or certified
mail, return receipt requested, at its address specified in or pursuant to
Section 6 is reasonably calculated to give actual notice.
8. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW
WHICH CANNOT BE WAIVED, EACH OF THE MANAGING AGENT AND THE PLEDGOR WAIVES, AND
COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR
OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE,
CLAIM, DEMAND OR ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE CREDIT
AGREEMENT OR ANY OTHER CREDIT DOCUMENT OR THE SUBJECT MATTER HEREOF OR THEREOF
OR ANY CREDIT OBLIGATION OR IN ANY WAY CONNECTED WITH THE DEALINGS OF THE
MANAGING AGENT OR THE PLEDGOR IN CONNECTION WITH ANY OF THE ABOVE, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER IN CONTRACT OR TORT OR
OTHERWISE. The Pledgor acknowledges that it has been informed by the Managing
Agent that the provisions of this Section 8 constitute a material inducement
upon which each of the Lenders has relied, is relying and will rely in entering
into the Credit Agreement and any other Credit Document, and that it has
reviewed the provisions of this Section 8 with its counsel. The Managing Agent
or the Pledgor may file an original counterpart or a copy of this Section 8
with any court as written evidence of the consent of the Managing Agent and the
Pledgor to the waiver of the right to trial by jury.
9. General. All covenants, agreements, representations and warranties made
in this Agreement or any other Credit Document or in certificates delivered
pursuant hereto or thereto shall be deemed to have been relied on by each
Lender, notwithstanding any investigation made by the Managing Agent on its
behalf, and shall survive the execution and delivery to the Lenders hereof and
thereof. The invalidity or unenforceability of any term or provision hereof
shall not affect the validity or enforceability of any other term or provision
hereof. The headings in this Agreement are for convenience of reference only
and shall not limit, alter or otherwise affect the meaning hereof. This
Agreement and the other Credit Documents constitute the entire understanding of
the parties with respect to the subject matter hereof and thereof and supersede
all prior and current understandings and agreements, whether written or oral.
This Agreement is a Credit Document and may be executed in any number of
counterparts, which together shall constitute one instrument. THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS (OTHER THAN THE
CONFLICT OF LAWS RULES) OF THE COMMONWEALTH OF MASSACHUSETTS.
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Each of the undersigned has caused this Agreement to be executed and
delivered by its duly authorized officer as an agreement under seal as of the
date first written above.
ATC HOLDINGS CORP.
By /s/ Xxxx X. Xxxxxx
-----------------------------------
Title: President
THE FIRST NATIONAL BANK OF BOSTON,
as Managing Agent under the Credit
Agreement
By /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------
Title: Director
