BEEN INDEFEASIBLY DISCHARGED IN FULL,
AND IF AT THE TIME NO LENDER CONTINUES TO BE COMMITTED TO EXTEND ANY CREDIT TO
THE COMPANY HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT, THIS AGREEMENT AND THE
OTHER CREDIT DOCUMENTS SHALL TERMINATE AND, AT THE COMPANY'S WRITTEN REQUEST,
ACCOMPANIED BY SUCH CERTIFICATES AND OTHER ITEMS AS THE AGENT SHALL REASONABLY
DEEM NECESSARY, THE CREDIT SECURITY SHALL REVERT TO THE OBLIGORS AND THE RIGHT,
TITLE AND INTEREST OF THE LENDERS AND THE AGENT THEREIN SHALL TERMINATE.
THEREUPON, ON THE OBLIGORS' DEMAND AND AT THEIR COST AND EXPENSE, THE AGENT
SHALL EXECUTE PROPER INSTRUMENTS, ACKNOWLEDGING SATISFACTION OF AND DISCHARGING
THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS, AND SHALL REDELIVER TO THE
OBLIGORS ANY CREDIT SECURITY THEN IN ITS POSSESSION; PROVIDED, HOWEVER, THAT
SECTIONS 3.4, 9, 10.7.7, 10.10, 12 AND 15 SHALL SURVIVE THE TERMINATION OF THIS
AGREEMENT.
15.2.
NO STRICT CONSTRUCTION.
THE PARTIES HAVE PARTICIPATED JOINTLY IN THE
NEGOTIATION AND DRAFTING OF THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS WITH
COUNSEL SOPHISTICATED IN FINANCING TRANSACTIONS.
IN THE EVENT AN AMBIGUITY OR
QUESTION OF INTENT OR INTERPRETATION ARISES, THIS AGREEMENT AND THE OTHER CREDIT
DOCUMENTS SHALL BE CONSTRUED AS IF DRAFTED JOINTLY BY THE PARTIES AND NO
PRESUMPTION OR BURDEN OF PROOF SHALL ARISE FAVORING OR DISFAVORING ANY PARTY BY
VIRTUE OF THE AUTHORSHIP OF ANY PROVISIONS OF THIS AGREEMENT AND THE OTHER
CREDIT DOCUMENTS.
15.3.
CERTAIN ACKNOWLEDGMENTS.
THE COMPANY ACKNOWLEDGES THAT:
(A)
IT HAS BEEN ADVISED BY COUNSEL IN THE NEGOTIATION, EXECUTION AND DELIVERY
OF THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS;
(B)
NEITHER ANY LENDER NOR THE AGENT HAS ANY FIDUCIARY RELATIONSHIP WITH OR
DUTY TO THE OBLIGORS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY
OTHER CREDIT DOCUMENT, AND THE RELATIONSHIP BETWEEN THE LENDERS AND THE AGENT,
ON ONE HAND, AND THE
96
OBLIGORS, ON THE OTHER HAND, IN CONNECTION HEREWITH OR THEREWITH IS SOLELY THAT
OF DEBTOR AND CREDITOR; AND
(C)
NO JOINT VENTURE IS CREATED HEREBY OR BY THE OTHER CREDIT DOCUMENTS OR
OTHERWISE EXISTS BY VIRTUE OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY
AMONG THE OBLIGORS AND THE LENDERS.
15.4.
VENUE; SERVICE OF PROCESS; CERTAIN WAIVERS.
EACH OF THE COMPANY, THE
LENDERS AND THE AGENT:
(A)
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;
(B)
WAIVES TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE
WAIVED, 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