OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY
CONTEMPLATED TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER
CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS
AGREEMENT.
EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
12
GENERAL PROVISIONS
12.1
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT BINDS AND IS
FOR THE BENEFIT OF THE SUCCESSORS AND PERMITTED ASSIGNS OF EACH PARTY.
BORROWER
MAY NOT ASSIGN THIS AGREEMENT OR ANY RIGHTS OR OBLIGATIONS UNDER IT
12
WITHOUT BANK'S PRIOR WRITTEN CONSENT WHICH MAY BE GRANTED OR WITHHELD IN BANK'S
DISCRETION.
BANK HAS THE RIGHT, WITHOUT THE CONSENT OF OR NOTICE TO BORROWER,
TO SELL, TRANSFER, NEGOTIATE, OR GRANT PARTICIPATION IN ALL OR ANY PART OF, OR
ANY INTEREST IN, BANK'S OBLIGATIONS, RIGHTS AND BENEFITS UNDER THIS AGREEMENT,
THE LOAN DOCUMENTS OR ANY RELATED AGREEMENT.
BANK WILL PROVIDE NOTICE OF ANY
ASSIGNMENT OF BANK'S OBLIGATIONS, RIGHTS AND BENEFITS UNDER THIS AGREEMENT, THE
LOAN DOCUMENTS OR ANY RELATED AGREEMENT.
PRIOR TO AN EVENT OF DEFAULT, THE BANK
MAY ONLY ASSIGN THIS AGREEMENT TO A COMMERCIAL BANK OR FINANCIAL INSTITUTION
(WHICH IS NOT A DIRECT COMPETITOR OF BORROWER), EXCEPT FOR ASSIGNMENTS BY BANK
DUE TO FORCED DIVESTITURE AT THE REQUEST OF ANY REGULATORY AGENCY OR A SALE OF
THE BANK OR ITS ASSETS.
12.2
INDEMNIFICATION.
BORROWER HEREBY INDEMNIFIES,
DEFENDS AND HOLDS THE BANK AND ITS DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS
HARMLESS AGAINST:
(A) ALL OBLIGATIONS, DEMANDS, CLAIMS, AND LIABILITIES
ASSERTED BY ANY OTHER PERSON 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 CAUSED BY
BANK'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
12.3
RIGHT OF SET-OFF.
BORROWER HEREBY GRANTS 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
(INCLUDING A BANK SUBSIDIARY) (TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW)
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 WHEN DUE 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, ARE HEREBY KNOWINGLY, VOLUNTARILY AND
IRREVOCABLY WAIVED.
12.4
TIME OF ESSENCE.
TIME IS OF THE ESSENCE FOR THE
PERFORMANCE OF ALL OBLIGATIONS IN