OR CAUSE OF ACTION SHALL HAVE RUN.
19
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 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
ATTORNEYS' FEES, COSTS AND EXPENSES.
IN ANY ACTION OR
PROCEEDING BETWEEN BORROWER AND BANK ARISING OUT OF OR RELATING TO THE LOAN
DOCUMENTS, BANK SHALL BE ENTITLED TO RECOVER ITS REASONABLE ATTORNEYS' FEES AND
OTHER COSTS AND EXPENSES INCURRED, IN ADDITION TO ANY OTHER RELIEF TO WHICH IT
MAY BE ENTITLED.
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, JOINTLY AND SEVERALLY, 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 ANY OF THE OBLIGATIONS, FOR ANY
PAYMENT MADE BY BORROWER WITH RESPECT TO THE OBLIGATIONS IN CONNECTION WITH THIS
AGREEMENT OR OTHERWISE AND ALL RIGHTS THAT IT MIGHT HAVE TO BENEFIT FROM, OR TO
PARTICIPATE IN, ANY SECURITY FOR THE OBLIGATIONS AS A RESULT OF ANY PAYMENT MADE
BY BORROWER WITH RESPECT TO THE OBLIGATIONS IN CONNECTION WITH