E BETWEEN BORROWER AND BANK, AND ACKNOWLEDGES, CONFIRMS AND AGREES THAT
EXCEPT
12
AS SET FORTH ON THE SCHEDULE HERETO, THE DISCLOSURES AND INFORMATION BORROWER
PROVIDED TO BANK IN THE PERFECTION CERTIFICATE HAS NOT CHANGED, AS OF THE DATE
HEREOF.
12.3
INDEMNIFICATION.
BORROWER HEREBY INDEMNIFIES, DEFENDS AND HOLDS
THE BANK AND ITS OFFICERS, EMPLOYEES AND AGENTS HARMLESS 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 BORROWER (INCLUDING REASONABLE
ATTORNEYS' FEES AND EXPENSES), EXCEPT FOR LOSSES IN WHOLE OR IN PART CAUSED BY
BANK'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
12.4
RIGHT OF SET-OFF.
IN CONSIDERATION OF BANK'S AGREEMENT TO ENTER
INTO THIS AGREEMENT,
BORROWER AND ANY GUARANTOR HEREBY GRANT TO BANK, A LIEN,
SECURITY INTEREST AND RIGHT OF SETOFF 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 THE BANK 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 AND ANY GUARANTOR 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 THE BORROWER
OR ANY GUARANTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
12.5
TIME OF ESSENCE.
TIME IS OF THE ESSENCE FOR THE PERFORMANCE OF ALL
OBLIGATIONS IN THIS AGREEMENT.
12.6
SEVERABILITY OF PROVISION.
EACH PROVISION OF THIS AGREEMENT IS
SEVERABLE FROM EVERY OTHER PROVISION IN DETERMINING THE ENFORCEABILITY OF ANY
PROVISION.
12.7
AMENDED AND RESTATED AGREEMENT.
THIS AGREEMENT SHALL AMEND AND
RESTATE IN ITS ENTIRETY A CERTAIN LOAN AND SECURITY AGREEMENT DATED AS OF
DECEMBER 29, 2000 BETWEEN BORROWER AND BANK, AS AMENDED BY A CERTAIN LOAN
MODIFICATION AGREEMENT DATED AS OF MARCH 30, 2001, AS FURTHER AMENDED BY A
CERTAIN SECOND LOAN MODIFICATION AGREEMENT DATED AS OF JUNE 29, 2001, AS FURTHER
AMENDED BY A CERTAIN THIRD LOAN MODIFICATION AGREEMENT DATED JUNE 23, 2001.
12.8
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.
12.9