HOWEVER, BANK SHALL USE
COMMERCIALLY REASONABLE EFFORTS TO OBTAIN SUCH PROSPECTIVE TRANSFEREE'S OR
PURCHASER'S AGREEMENT TO THE TERMS OF THIS PROVISION); (C) AS REQUIRED BY LAW,
REGULATION, SUBPOENA, OR OTHER ORDER; (D) TO BANK'S REGULATORS OR AS OTHERWISE
REQUIRED IN CONNECTION WITH BANK'S EXAMINATION OR AUDIT; AND (E) AS BANK
CONSIDERS APPROPRIATE IN EXERCISING REMEDIES UNDER THIS AGREEMENT.
CONFIDENTIAL
INFORMATION DOES NOT INCLUDE INFORMATION THAT EITHER: (I) IS IN THE PUBLIC
DOMAIN OR IN BANK'S POSSESSION WHEN DISCLOSED TO BANK, OR BECOMES PART OF THE
PUBLIC DOMAIN AFTER DISCLOSURE TO BANK; OR (II) IS DISCLOSED TO BANK BY A THIRD
PARTY, IF BANK DOES NOT KNOW THAT THE THIRD PARTY IS PROHIBITED FROM DISCLOSING
THE INFORMATION.
12.9
ATTORNEYS' FEES, COSTS AND EXPENSES.
IN ANY ACTION OR PROCEEDING
BETWEEN BORROWER AND BANK ARISING OUT OF OR RELATING TO THE LOAN DOCUMENTS, BANK
SHALL BE ENTITLED TO RECOVER ITS REASONABLE ATTORNEYS' FEES AND OTHER COSTS AND
EXPENSES INCURRED, IN ADDITION TO ANY OTHER RELIEF TO WHICH IT MAY BE ENTITLED.
12.10
BORROWER LIABILITY.
EACH BORROWER MAY, ACTING SINGLY, REQUEST CREDIT
EXTENSIONS HEREUNDER.
EACH BORROWER HEREBY APPOINTS THE OTHER AS AGENT FOR THE
OTHER FOR ALL PURPOSES HEREUNDER, INCLUDING WITH RESPECT TO REQUESTING CREDIT
EXTENSIONS HEREUNDER. EACH BORROWER HEREUNDER SHALL BE OBLIGATED TO REPAY ALL
CREDIT EXTENSIONS MADE HEREUNDER, REGARDLESS OF WHICH BORROWER ACTUALLY RECEIVES
SAID ADVANCE, AS IF EACH BORROWER HEREUNDER DIRECTLY RECEIVED ALL CREDIT
EXTENSIONS.
EACH BORROWER WAIVES ANY SURETYSHIP DEFENSES AVAILABLE TO IT UNDER
THE CODE OR ANY OTHER APPLICABLE LAW.
EACH BORROWER WAIVES ANY RIGHT TO REQUIRE
BANK TO: (I) PROCEED AGAINST ANY
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BORROWER OR ANY OTHER PERSON; (II) PROCEED AGAINST OR EXHAUST ANY SECURITY; OR
(III) PURSUE ANY OTHER REMEDY.
BANK MAY EXERCISE OR NOT EXERCISE ANY RIGHT OR
REMEDY IT HAS AGAINST ANY BORROWER OR ANY SECURITY IT HOLDS (INCLUDING THE RIGHT
TO FORECLOSE BY JUDICIAL OR NON-JUDICIAL SALE) WITHOUT AFFECTING ANY BORROWER'S
LIABILITY.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT OR OTHER
RELATED DOCUMENT, EACH BORROWER IRREVOCABLY WAIVES ALL RIGHTS THAT IT MAY HAVE
AT LAW OR IN EQUITY (INCLUDING, WITHOUT LIMITATION, ANY LAW SUBROGATING BORROWER
TO THE RIGHTS OF BANK UNDER THIS AGREEMENT) TO SEEK CONTRIBUTION,
INDEMNIFICATION OR ANY OTHER FORM OF REIMBURSEMENT FROM ANY OTHER BORROWER, OR
ANY OTHER PERSON NOW OR HEREAFTER PRIMARILY OR SECONDARILY LIABLE FOR ANY OF THE
OBLIGATIONS, FOR ANY PAYMENT MADE BY BORROWER WITH RESPECT TO THE OBLIGATIONS IN
CONNECTION WITH THIS AGREEMENT OR OTHERWISE AND ALL RIGHTS THAT IT MIGHT HAVE TO
BENEFIT FROM, OR TO PARTICIPATE IN, ANY SECURITY FOR THE OBLIGATIONS AS A RESULT
OF ANY PAYMENT MADE BY BORROWER WITH RESPECT TO THE OBLIGATIONS IN CONNECTION
WITH THIS AGREEMENT OR OTHERWISE.
ANY AGREEMENT PROVIDING FOR INDEMNIFICATION,
REIMBURSEMENT OR ANY OTHER ARRANGEMENT PROHIBITED UNDER THIS SECTION SHALL BE
NULL AND VOID.
IF ANY PAYMENT IS MADE TO A BORROWER IN CONTRAVENTION OF THIS
SECTION, SUCH BORROWER SHALL HOLD SUCH PAYMENT IN TRUST FOR BANK AND SUCH
PAYMENT SHALL BE PROMPTLY DELIVERED TO BANK FOR