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.
12.6
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, IS AN ORIGINAL, AND ALL TAKEN TOGETHER,
CONSTITUTE ONE AGREEMENT.
12.7
SURVIVAL. ALL COVENANTS, REPRESENTATIONS AND
WARRANTIES MADE IN THIS AGREEMENT CONTINUE IN FULL FORCE UNTIL THIS AGREEMENT
HAS TERMINATED PURSUANT TO ITS TERMS AND ALL OBLIGATIONS (OTHER THAN INCHOATE
INDEMNITY OBLIGATIONS AND ANY OTHER OBLIGATIONS WHICH, BY THEIR TERMS, ARE TO
SURVIVE THE TERMINATION OF THIS AGREEMENT) HAVE BEEN SATISFIED. 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.
16
12.8
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.
12.9
BORROWER LIABILITY. EITHER BORROWER MAY, ACTING
SINGLY, REQUEST CREDIT EXTENSIONS HEREUNDER. EACH BORROWER HEREBY APPOINTS THE
OTHER AS AGENT FOR THE OTHER FOR ALL PURPOSES HEREUNDER, INCLUDING WITH RESPECT
TO REQUESTING CREDIT EXTENSIONS HEREUNDER. EACH BORROWER HEREUNDER SHALL BE
OBLIGATED 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