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.
12.10
RIGHT OF SET OFF.
BORROWER HEREBY GRANTS TO BANK, A
LIEN, SECURITY INTEREST AND RIGHT OF SET OFF AS SECURITY FOR ALL 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 BANK
(INCLUDING A BANK SUBSIDIARY) OR IN TRANSIT TO ANY OF THEM.
AT ANY TIME AFTER
THE OCCURRENCE AND DURING THE CONTINUANCE OF AN EVENT OF DEFAULT, WITHOUT DEMAND
OR NOTICE, BANK MAY SET OFF 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 SECURING THE OBLIGATIONS.
ANY AND ALL
RIGHTS TO REQUIRE BANK 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 PROPERTY OF BORROWER ARE
HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
12.11
BORROWER LIABILITY.
AS DETAILED IN ARTICLE 1, EACH
BORROWER HAS APPOINTED CALIPER AS AGENT FOR EACH BORROWER 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 CREDIT EXTENSION,
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 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