Subsidiary of the
Borrower to the PBGC which, in each case, in the reasonable opinion of the Bank
may have material adverse effect upon the financial condition of the Borrower or
any such Subsidiary; or
(k)
Any Loan Document shall for any reason
(other than due to payment in full of all amounts evidenced thereby or due to
discharge in writing by the Bank) not remain in full force and effect; or
(l)
Any Subsidiary of the Borrower shall
cease to be a direct or indirect wholly-owned Subsidiary.
SECTION 9.
ENFORCING THIS AGREEMENT; MISCELLANEOUS
9.1
RIGHTS AND REMEDIES ON DEFAULT.
UPON THE
OCCURRENCE OF ANY EVENT OF DEFAULT, IN ADDITION TO ANY OTHER RIGHTS AND REMEDIES
AVAILABLE TO THE BANK HEREUNDER OR OTHERWISE, THE BANK MAY EXERCISE ANY ONE OR
MORE OF THE FOLLOWING RIGHTS AND REMEDIES (ALL OF WHICH SHALL BE CUMULATIVE):
(a)
Declare the entire unpaid principal amount
due under this Agreement and then outstanding, all interest accrued and unpaid
thereon and all other amounts payable under this Agreement, and all other
Indebtedness of the Borrower to the Bank, to be forthwith due and payable,
whereupon the same shall become forthwith due and payable, without presentment,
demand, protest or notice of any kind, all of which are hereby expressly waived
by the Borrower.
(b)
Exercise all rights and remedies hereunder
and under each and any other agreement with the Bank, and exercise all other
rights and remedies which the Bank may have under applicable law.
13
9.2
SET-OFF.
BORROWER HEREBY GRANTS TO BANK, A
CONTINUING LIEN, SECURITY INTEREST AND RIGHT OF SETOFF AS SECURITY FOR ALL
LIABILITIES AND OBLIGATIONS TO BANK, WHETHER NOW EXISTING OR HEREAFTER ARISING,
UPON AND AGAINST ALL DEPOSITS, CREDITS, COLLATERAL AND PROPERTY, NOW OR
HEREAFTER IN THE POSSESSION, CUSTODY, SAFEKEEPING OR CONTROL OF BANK OR ANY
ENTITY UNDER THE CONTROL OF RBS CITIZENS, NATIONAL ASSOCIATION OR ITS AFFILIATES
AND ITS SUCCESSORS AND ASSIGNS OR IN TRANSIT TO ANY OF THEM, AT ANY TIME,
WITHOUT DEMAND OR NOTICE (ANY SUCH NOTICE BEING EXPRESSLY WAIVED BY BORROWER),
BANK MAY SETOFF THE SAME OR ANY PART THEREOF AND APPLY THE SAME TO ANY LIABILITY
OR OBLIGATION OF BORROWER EVEN THOUGH UNMATURED AND REGARDLESS OF THE ADEQUACY
OF ANY OTHER COLLATERAL. ANY AND ALL RIGHTS TO REQUIRE THE BANK TO EXERCISE ITS
RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES ANY OF THE
OBLIGATIONS PRIOR TO THE EXERCISE BY THE BANK OF ITS RIGHT OF SET-OFF UNDER THIS
SECTION ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
9.3
GAAP.
EXCEPT AS OTHERWISE STATED IN THIS
AGREEMENT, ALL FINANCIAL INFORMATION PROVIDED TO THE BANK AND ALL FINANCIAL
COVENANTS WILL BE MADE UNDER GENERALLY ACCEPTED ACCOUNTING PRINCIPLES,
CONSISTENTLY APPLIED.
9.4
GOVERNING LAW.
THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS.
TO THE EXTENT THAT THE BANK HAS GREATER RIGHTS OR REMEDIES UNDER
FEDERAL LAW, WHETHER AS A NATIONAL BANK OR OTHERWISE, THIS PARAGRAPH SHALL NOT
BE DEEMED