ANY OF SUCH BORROWER'S OFFICERS 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. EACH BORROWER AGREES THAT SUCH ONE-YEAR PERIOD IS A REASONABLE AND
SUFFICIENT TIME FOR SUCH 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.
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 THE BORROWERS. THIS AGREEMENT AND THE
LOAN DOCUMENTS REPRESENT THE ENTIRE AGREEMENT ABOUT THIS SUBJECT MATTER AND
SUPERSEDE PRIOR NEGOTIATIONS OR AGREEMENTS. ALL PRIOR AGREEMENTS,
UNDERSTANDINGS,
19
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 EACH 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 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