prepared in accordance with GAAP, applied on a basis consistent with that
applied in preparing the financial statements as at, and for the period ended,
the Statement Date (except to the extent otherwise required to conform to good
accounting practice).
12.
MISCELLANEOUS.
12.1
TERMS BINDING UPON SUCCESSORS; SURVIVAL OF REPRESENTATIONS.
THE
TERMS AND PROVISIONS OF THIS AGREEMENT SHALL BE BINDING UPON AND INURE TO THE
BENEFIT OF THE PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
ALL
REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS HEREIN CONTAINED ON THE
PART OF THE COMPANY SHALL SURVIVE THE MAKING OF ANY ADVANCE AND THE EXECUTION OF
THE NOTE, AND SHALL BE EFFECTIVE SO LONG AS THE COMMITMENT IS OUTSTANDING
HEREUNDER OR THERE REMAIN ANY OBLIGATIONS OF THE COMPANY HEREUNDER OR UNDER THE
NOTE TO BE PAID OR PERFORMED.
12.2
ASSIGNMENT.
THIS AGREEMENT MAY NOT BE ASSIGNED BY THE COMPANY.
THE LENDER MAY ASSIGN, AT ANY TIME, IN WHOLE OR IN PART, ITS RIGHTS AND DELEGATE
ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, ALONG WITH
THE LENDER'S SECURITY INTEREST IN ANY OR ALL OF THE COLLATERAL, AND ANY ASSIGNEE
THEREOF MAY ENFORCE THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AND SUCH
SECURITY INTEREST.
12.3
AMENDMENTS.
EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THIS
AGREEMENT MAY NOT BE AMENDED, MODIFIED OR SUPPLEMENTED UNLESS SUCH AMENDMENT,
MODIFICATION OR SUPPLEMENT IS SET FORTH IN A WRITING SIGNED BY THE PARTIES
HERETO.
12.4
GOVERNING LAW.
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL
BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS, WITHOUT REFERENCE TO ITS
PRINCIPLES OF CONFLICTS OF LAWS.
12.5
PARTICIPATIONS.
THE LENDER MAY AT ANY TIME SELL, ASSIGN OR GRANT
PARTICIPATIONS IN, OR OTHERWISE TRANSFER TO ANY OTHER PERSON (A "PARTICIPANT"),
ALL OR PART OF THE OBLIGATIONS OF THE COMPANY UNDER THIS AGREEMENT.
WITHOUT
LIMITATION OF THE EXCLUSIVE RIGHT OF THE LENDER TO
50
COLLECT AND ENFORCE SUCH OBLIGATIONS, THE COMPANY AGREES THAT EACH DISPOSITION
WILL GIVE RISE TO A DEBTOR-CREDITOR RELATIONSHIP OF THE COMPANY TO THE
PARTICIPANT, AND THE COMPANY AUTHORIZES EACH PARTICIPANT, UPON THE OCCURRENCE OF
AN EVENT OF DEFAULT, TO PROCEED DIRECTLY BY RIGHT OF SETOFF, BANKER'S LIEN, OR
OTHERWISE, AGAINST ANY ASSETS OF THE COMPANY WHICH MAY BE IN THE HANDS OF SUCH
PARTICIPANT.
THE COMPANY AUTHORIZES THE LENDER TO DISCLOSE TO ANY PROSPECTIVE
PARTICIPANT AND ANY PARTICIPANT ANY AND ALL INFORMATION IN THE LENDER'S
POSSESSION CONCERNING THE COMPANY, THIS AGREEMENT AND THE COLLATERAL.
12.6
RELATIONSHIP OF THE PARTIES.
THIS AGREEMENT PROVIDES FOR THE
MAKING OF ADVANCES BY THE LENDER, IN ITS CAPACITY AS A LENDER, TO THE COMPANY,
IN ITS CAPACITY AS A BORROWER, AND FOR THE PAYMENT OF INTEREST, REPAYMENT OF
PRINCIPAL BY THE COMPANY TO THE LENDER, AND FOR THE PAYMENT OF CERTAIN FEES BY
THE COMPANY TO THE LENDER.
THE RELATIONSHIP BETWEEN THE LENDER AND THE COMPANY
IS LIMITED TO THAT OF CREDITOR/SECURED PARTY, ON THE ONE HAND, AND DEBTOR, ON
THE OTHER HAND.
THE PROVISIONS HEREIN FOR COMPLIANCE WITH FINANCIAL COVENANTS
AND DELIVERY