THIS AGREEMENT.
12.5
SEVERABILITY OF PROVISION.
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. DELIVERY OF AN EXECUTED SIGNATURE PAGE OF THIS
AGREEMENT BY TELECOPY AND DELIVERY OF EXECUTED COPIES OF DOCUMENTS REQUIRED BY
SECTION 3.1 BY TELECOPY SHALL BE AS EFFECTIVE AS DELIVERY OF A MANUALLY EXECUTED
COUNTERPART OF EACH SUCH DOCUMENT.
12.8
SURVIVAL.
ALL COVENANTS, REPRESENTATIONS AND
WARRANTIES MADE IN THIS AGREEMENT CONTINUE IN FULL FORCE WHILE ANY OBLIGATIONS
REMAIN OUTSTANDING.
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 WILL EXERCISE THE SAME DEGREE OF CARE THAT IT
EXERCISES FOR ITS OWN PROPRIETARY INFORMATION, BUT DISCLOSURE OF INFORMATION MAY
BE MADE (I) TO BANK'S SUBSIDIARIES OR AFFILIATES, TO FURTHER THE PURPOSES OF
THIS AGREEMENT OR TRANSACTIONS CONTEMPLATED HEREBY, WHOM BANK WILL CAUSE TO
COMPLY WITH THIS PROVISION, (II) TO PROSPECTIVE TRANSFEREES OR PURCHASERS OF ANY
INTEREST IN THE LOANS (PROVIDED, HOWEVER, BANK SHALL OBTAIN SUCH PROSPECTIVE
TRANSFEREE OR PURCHASER'S AGREEMENT TO THE TERMS OF THIS PROVISION), (III) AS
REQUIRED BY LAW, REGULATION, SUBPOENA, OR OTHER ORDER, (IV) AS REQUIRED IN
CONNECTION WITH BANK'S EXAMINATION OR AUDIT AND (V) AS APPROPRIATE IN EXERCISING
REMEDIES UNDER THIS AGREEMENT.
CONFIDENTIAL
13
INFORMATION DOES NOT INCLUDE INFORMATION THAT EITHER: (A) IS IN THE PUBLIC
DOMAIN OR RIGHTFULLY IN BANK'S POSSESSION WHEN DISCLOSED TO BANK, OR BECOMES
PART OF THE PUBLIC DOMAIN, THROUGH NO FAULT OF THE BANK, AFTER DISCLOSURE TO
BANK; OR (B) IS DISCLOSED TO BANK BY A THIRD PARTY, IF BANK DOES NOT REASONABLY
KNOW THAT THE THIRD PARTY IS PROHIBITED FROM DISCLOSING THE INFORMATION.
13
DEFINITIONS
13.1
DEFINITIONS.
IN THIS AGREEMENT:
"Accounts" are all existing and later arising accounts, contract rights, and
other obligations owed Borrower in connection with its sale or lease of goods
(including licensing of software and other technology) or provision of services,
all credit insurance, guaranties, other security and Borrower's Books relating
to any of the foregoing, as such definition may be amended from time to time
according to the Code.
"Advance" or "Advances" is a loan advance (or advances) under the Revolving
Line.
"Affiliate" is a Person that owns or controls directly or indirectly the Person,
any Person