AGREEMENT.
EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
12
GENERAL PROVISIONS
12.1
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT BINDS AND IS FOR THE BENEFIT OF THE SUCCESSORS AND PERMITTED
ASSIGNS OF EACH PARTY. BORROWERS MAY NOT ASSIGN THIS AGREEMENT OR ANY RIGHTS
UNDER IT WITHOUT BANK'S PRIOR WRITTEN CONSENT WHICH MAY BE GRANTED OR WITHHELD
IN BANK'S DISCRETION. BANK HAS THE RIGHT, WITHOUT THE CONSENT OF OR NOTICE TO
BORROWERS, TO SELL, TRANSFER, NEGOTIATE, OR GRANT PARTICIPATION IN ALL OR ANY
PART OF, OR ANY INTEREST IN, BANK'S OBLIGATIONS, RIGHTS AND BENEFITS UNDER THIS
AGREEMENT.
12.2
INDEMNIFICATION.
EACH BORROWER WILL INDEMNIFY, DEFEND AND HOLD HARMLESS BANK AND ITS OFFICERS,
EMPLOYEES, AND AGENTS AGAINST:
(A) ALL OBLIGATIONS, DEMANDS, CLAIMS, AND
LIABILITIES ASSERTED BY ANY OTHER PARTY IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED BY THE LOAN DOCUMENTS; AND (B) ALL LOSSES OR BANK EXPENSES
INCURRED, OR PAID BY BANK FROM, FOLLOWING, OR CONSEQUENTIAL TO TRANSACTIONS
BETWEEN BANK AND ANY BORROWER (INCLUDING REASONABLE ATTORNEYS FEES AND
EXPENSES), EXCEPT WITH RESPECT TO (A) AND (B) ABOVE WHERE SUCH LOSSES,
OBLIGATIONS, DEMANDS, CLAIMS OR LIABILITIES ARE CAUSED BY BANK'S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT.
12.3
TIME OF ESSENCE.
TIME IS OF THE ESSENCE FOR THE PERFORMANCE OF ALL OBLIGATIONS IN THIS AGREEMENT.
12.4
SEVERABILITY OF PROVISION.
EACH PROVISION OF THIS AGREEMENT IS SEVERABLE FROM EVERY OTHER PROVISION IN
DETERMINING THE ENFORCEABILITY OF ANY PROVISION.
12.5
AMENDMENTS IN WRITING, INTEGRATION.
ALL AMENDMENTS TO THIS AGREEMENT MUST BE IN WRITING AND SIGNED BY BORROWERS AND
BANK. THIS AGREEMENT REPRESENTS THE ENTIRE AGREEMENT ABOUT THIS SUBJECT MATTER,
AND SUPERSEDES PRIOR NEGOTIATIONS OR AGREEMENTS. ALL PRIOR AGREEMENTS,
UNDERSTANDINGS, REPRESENTATIONS, WARRANTIES, AND NEGOTIATIONS BETWEEN THE
PARTIES ABOUT THE SUBJECT MATTER OF THIS AGREEMENT MERGE INTO THIS AGREEMENT AND
THE LOAN DOCUMENTS.
12.6
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER OF COUNTERPARTS AND BY DIFFERENT
PARTIES ON SEPARATE COUNTERPARTS, EACH OF WHICH, WHEN EXECUTED AND DELIVERED,
ARE AN ORIGINAL, AND ALL TAKEN TOGETHER, CONSTITUTE ONE AGREEMENT.
12.7
SURVIVAL.
ALL COVENANTS, REPRESENTATIONS AND WARRANTIES MADE IN THIS AGREEMENT CONTINUE IN
FULL FORCE WHILE
ANY OBLIGATIONS REMAIN OUTSTANDING. THE OBLIGATIONS OF
BORROWERS IN SECTION 12.2 TO INDEMNIFY BANK WILL SURVIVE UNTIL ALL STATUTES OF
LIMITATIONS FOR ACTIONS THAT MAY BE BROUGHT AGAINST BANK HAVE RUN.
14
12.8
CONFIDENTIALITY.
IN HANDLING ANY CONFIDENTIAL INFORMATION, BANK WILL EXERCISE THE SAME DEGREE OF
CARE THAT IT EXERCISES FOR ITS OWN PROPRIETARY INFORMATION, BUT DISCLOSURE OF
INFORMATION MAY BE MADE (I) TO BANK'S SUBSIDIARIES OR AFFILIATES IN CONNECTION
WITH THEIR BUSINESS WITH BORROWERS, (II) TO PROSPECTIVE TRANSFEREES OR
PURCHASERS OF ANY INTEREST IN THE LOANS (PROVIDED, HOWEVER, BANK SHALL USE
COMMERCIALLY REASONABLE EFFORTS IN OBTAINING SUCH PROSPECTIVE TRANSFEREE OR
PURCHASERS AGREEMENT OF THE TERMS OF THIS PROVISION), (III) AS REQUIRED BY LAW,
REGULATION, SUBPOENA, OR OTHER ORDER, (IV) AS REQUIRED IN CONNECTION WITH BANK'S
EXAMINATION OR AUDIT AND (V) AS BANK CONSIDERS APPROPRIATE EXERCISING REMEDIES
UNDER THIS AGREEMENT. CONFIDENTIAL INFORMATION DOES NOT INCLUDE INFORMATION THAT
EITHER: (A) IS IN THE PUBLIC DOMAIN OR