AGREEMENT OR
CONDITION SHALL NOT OPERATE AS A WAIVER OF, OR ESTOPPEL WITH RESPECT TO, ANY
SUBSEQUENT OR OTHER FAILURE.
ARTICLE X
MISCELLANEOUS
10.1
SURVIVAL.
EXCEPT AS TO ANY LOSS ARISING FROM
ACTUAL FRAUD, THE REPRESENTATIONS, WARRANTIES, COVENANTS, AND OBLIGATIONS SET
FORTH IN THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN RELIED UPON BY THE PARTY TO
WHOM THEY ARE MADE AND SURVIVE THE CLOSING UNTIL THE EXPIRATION OF TWO (2) YEARS
FOLLOWING THE CLOSING DATE (THE "REPRESENTATIONS AND WARRANTIES EXPIRATION
DATE").
IF ANY UNRESOLVED CLAIMS ARE OUTSTANDING ON THE REPRESENTATIONS AND
WARRANTIES EXPIRATION DATE, SUCH REPRESENTATIONS AND WARRANTIES OR INDEMNITY
OBLIGATIONS PERTINENT TO THE UNRESOLVED CLAIMS SHALL SURVIVE THE CLOSING UNTIL
THE DATE OF THE FINAL RESOLUTION OF ANY UNRESOLVED CLAIMS OUTSTANDING ON THE
REPRESENTATIONS AND WARRANTIES EXPIRATION DATE.
10.2
WAIVER OF JURY TRIAL.
THE PARTIES HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT THAT THEY MAY HAVE TO TRIAL BY JURY OF ANY CLAIM OR
CAUSE OF ACTION, OR IN ANY LEGAL PROCEEDING, DIRECTLY OR INDIRECTLY BASED UPON
OR ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT (WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER THEORY).
EACH PARTY
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTIES WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
10.3
CONFIDENTIALITY.
PRIOR TO THE CLOSING DATE (OR
AT ANY TIME IF CLOSING DOES NOT OCCUR), BUYER SHALL KEEP CONFIDENTIAL AND NOT
DISCLOSE TO ANY PERSON (OTHER THAN ITS DIRECTORS, OFFICERS, STOCKHOLDERS,
EMPLOYEES, LENDERS, ATTORNEYS, ACCOUNTANTS AND ADVISERS) OR USE (EXCEPT IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT) ANY NON-PUBLIC
INFORMATION OBTAINED BY BUYER FROM SELLER AND/OR SHAREHOLDER (IF ANY) IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT AND AS
RESTRICTED IN 12 C.F.R. §573.11(A).
THIS SECTION 10.3 SHALL NOT BE VIOLATED BY
DISCLOSURE OF INFORMATION WHICH, AT THE TIME OF DISCLOSURE IS PUBLICLY AVAILABLE
OR BECOMES PUBLICLY AVAILABLE THROUGH NO ACT OF OMISSION OF A PERSON HAVING A
CONFIDENTIALITY OBLIGATION UNDER THIS SECTION, IS DISCLOSED TO SUCH PERSON BY A
THIRD PARTY WHICH DID NOT ACQUIRE THE INFORMATION UNDER AN OBLIGATION OF
CONFIDENTIALITY, IS INDEPENDENTLY ACQUIRED BY SUCH PERSON AS A RESULT OF WORK
CARRIED OUT BY SUCH PERSON TO WHOM NO DISCLOSURE OF SUCH INFORMATION HAS BEEN
MADE, IS DISCLOSED AS REASONABLY REQUIRED IN CONNECTION WITH A PROCEEDING TO
ENFORCE OR DEFEND A PARTY'S RIGHTS, OR DEFEND AGAINST A PARTY'S ALLEGED
LIABILITIES, UNDER THIS
22
AGREEMENT, OR IS DISCLOSED AS REQUIRED BY COURT ORDER OR AS OTHERWISE REQUIRED
BY LAW, ON CONDITION THAT NOTICE OF THE REQUIREMENT FOR SUCH DISCLOSURE IS GIVEN
TO THE OTHER PARTIES PRIOR TO MAKING ANY DISCLOSURE AND SUCH PERSON COOPERATES
AS THE OTHERS MAY REASONABLY