THIS LOAN AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR ANY OTHER TRANSACTION CONTEMPLATED HEREBY OR THEREBY OR RELATING
HERETO OR THERETO, OR ANY OTHER MATTER, CAUSE OR THING WHATSOEVER, OCCURRED,
DONE, OMITTED OR SUFFERED TO BE DONE BY BANK, ITS DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS, ACCOUNTANTS OR ATTORNEYS, SHALL BE BARRED UNLESS ASSERTED BY
BORROWER BY THE COMMENCEMENT OF AN ACTION OR PROCEEDING IN A COURT OF COMPETENT
JURISDICTION BY (A) THE FILING OF A COMPLAINT WITHIN ONE YEAR FROM THE EARLIER
OF (I) THE DATE ANY OF BORROWER'S OFFICER OR DIRECTORS HAD KNOWLEDGE OF THE
FIRST ACT, THE OCCURRENCE OR OMISSION UPON WHICH SUCH CLAIM OR CAUSE OF ACTION,
OR ANY PART THEREOF, IS BASED, OR (II) THE DATE THIS AGREEMENT IS TERMINATED,
AND (B) THE SERVICE OF A SUMMONS AND COMPLAINT ON AN OFFICER OF BANK, OR ON ANY
OTHER PERSON AUTHORIZED TO ACCEPT SERVICE ON BEHALF OF BANK, WITHIN THIRTY (30)
DAYS THEREAFTER.
BORROWER AGREES THAT SUCH ONE-YEAR PERIOD IS A REASONABLE AND
SUFFICIENT TIME FOR BORROWER TO INVESTIGATE AND ACT UPON ANY SUCH CLAIM OR CAUSE
OF ACTION.
THE ONE-YEAR PERIOD PROVIDED HEREIN SHALL NOT BE WAIVED, TOLLED, OR
EXTENDED EXCEPT BY THE WRITTEN CONSENT OF BANK IN ITS SOLE DISCRETION.
THIS
PROVISION SHALL SURVIVE ANY TERMINATION OF THIS LOAN AGREEMENT OR ANY OTHER LOAN
DOCUMENT.
15
12.4
TIME OF ESSENCE.
TIME IS OF THE ESSENCE FOR THE
PERFORMANCE OF ALL OBLIGATIONS IN THIS AGREEMENT.
12.5
SEVERABILITY OF PROVISIONS.
EACH PROVISION OF THIS
AGREEMENT IS SEVERABLE FROM EVERY OTHER PROVISION IN DETERMINING THE
ENFORCEABILITY OF ANY PROVISION.
12.6
AMENDMENTS IN WRITING; INTEGRATION.
ALL AMENDMENTS
TO THIS AGREEMENT MUST BE IN WRITING SIGNED BY BOTH BANK AND BORROWER.
THIS
AGREEMENT AND THE LOAN DOCUMENTS REPRESENT THE ENTIRE AGREEMENT ABOUT THIS
SUBJECT MATTER AND SUPERSEDE PRIOR NEGOTIATIONS OR AGREEMENTS.
ALL PRIOR
AGREEMENTS, UNDERSTANDINGS, REPRESENTATIONS, WARRANTIES, AND NEGOTIATIONS
BETWEEN THE PARTIES ABOUT THE SUBJECT MATTER OF THIS AGREEMENT AND THE LOAN
DOCUMENTS MERGE INTO THIS AGREEMENT AND THE LOAN DOCUMENTS.
12.7
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.
12.8
SURVIVAL.
ALL COVENANTS, REPRESENTATIONS AND
WARRANTIES MADE IN THIS AGREEMENT CONTINUE IN FULL FORCE UNTIL THIS AGREEMENT
HAS TERMINATED PURSUANT TO ITS TERMS AND ALL OBLIGATIONS (OTHER THAN INCHOATE
INDEMNITY OBLIGATIONS AND ANY OTHER OBLIGATIONS WHICH, BY THEIR TERMS, ARE TO
SURVIVE THE TERMINATION OF THIS AGREEMENT) HAVE BEEN SATISFIED.
THE OBLIGATION
OF BORROWER IN SECTION 12.2 TO INDEMNIFY BANK SHALL SURVIVE UNTIL THE STATUTE OF
LIMITATIONS WITH RESPECT TO SUCH CLAIM OR CAUSE OF ACTION SHALL HAVE RUN.
12.9
CONFIDENTIALITY.
IN HANDLING ANY CONFIDENTIAL
INFORMATION, BANK SHALL EXERCISE THE SAME DEGREE OF CARE THAT IT EXERCISES FOR
ITS OWN PROPRIETARY INFORMATION, BUT DISCLOSURE OF INFORMATION MAY BE MADE:
(A) TO BANK'S SUBSIDIARIES OR AFFILIATES; (B) TO PROSPECTIVE TRANSFEREES OR
PURCHASERS OF ANY INTEREST IN THE CREDIT EXTENSIONS (PROVIDED, HOWEVER, BANK
SHALL