describing such
amendment or modification executed by the parties hereto.
(d)
Debtor hereby submits to the jurisdiction of the courts of the
Commonwealth of Massachusetts and the United States District Court for the
District of Massachusetts, as well as to the jurisdiction of all courts from
which an appeal may be taken or other review sought from the aforesaid courts,
for the purpose of any suit, action or other proceeding arising out of any of
Debtor's Obligations under or with respect to this Agreement, the Note, the
Security Documents or any of the transactions contemplated hereby, and expressly
waives any and all objections it may have as to venue in any of such courts.
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(e)
DEBTOR AND SECURED PARTY MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM
BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH OR ANY
COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF ANY PARTY, INCLUDING, WITHOUT LIMITATION, ANY COURSE OF CONDUCT,
COURSE OF DEALINGS, STATEMENTS OR ACTIONS OF SECURED PARTY RELATING TO THE
ADMINISTRATION OF THE LOANS OR ENFORCEMENT OF THE LOAN DOCUMENTS, AND AGREE THAT
NO PARTY WILL SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH
A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.
EXCEPT AS PROHIBITED BY LAW,
EACH OF DEBTOR AND SECURED PARTY HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR
RECOVER IN ANY LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES.
DEBTOR
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF SECURED PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SECURED PARTY WOULD NOT, IN THE EVENT
OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER.
THIS WAIVER CONSTITUTES A
MATERIAL INDUCEMENT FOR SECURED PARTY TO ACCEPT THIS AGREEMENT AND THE NOTE AND
MAKE THE LOANS AND CONSIGNMENTS.
(f)
Debtor hereby grants to Secured Party, a continuing lien, security
interest and right of setoff as security for the Obligations, upon and against
all deposits, credits, collateral and property, now or hereafter in the
possession, custody, safekeeping or control of Secured Party or any entity under
the control of Secured Party and its successors and assigns, or in transit to
any of them.
At any time, during the continuance of an Event of Default,
without demand or notice (any such notice being expressly waived by Debtor),
Secured Party may setoff the same or any part thereof and apply the same to any
liability or obligation of Debtor even though unmatured and regardless of the
adequacy of any other collateral securing this Note.
ANY AND ALL RIGHTS TO
REQUIRE SECURED PARTY TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY
OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF
SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER