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 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 THIS EXIM AGREEMENT.
12.5
SEVERABILITY OF PROVISIONS.
EACH PROVISION OF THIS
EXIM AGREEMENT IS SEVERABLE FROM EVERY OTHER PROVISION IN DETERMINING THE
ENFORCEABILITY OF ANY PROVISION.
12.6
CORRECTION OF LOAN DOCUMENTS.
BANK MAY CORRECT
PATENT ERRORS AND FILL IN ANY BLANKS IN THIS EXIM AGREEMENT AND THE OTHER LOAN
DOCUMENTS CONSISTENT WITH THE AGREEMENT OF THE PARTIES.
12.7
AMENDMENTS IN WRITING; INTEGRATION.
ALL AMENDMENTS
TO THIS EXIM AGREEMENT MUST BE IN WRITING SIGNED BY BOTH BANK AND BORROWER.
THIS EXIM 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 EXIM AGREEMENT AND THE LOAN
DOCUMENTS MERGE INTO THIS EXIM AGREEMENT AND THE LOAN DOCUMENTS.
12.7
COUNTERPARTS.
THIS EXIM 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 EXIM AGREEMENT.
12.8
SURVIVAL.
ALL COVENANTS, REPRESENTATIONS AND
WARRANTIES MADE IN THIS EXIM AGREEMENT CONTINUE IN FULL FORCE UNTIL THIS EXIM
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 EXIM 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.
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 ADVANCES (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; (E) AS BANK CONSIDERS
APPROPRIATE IN EXERCISING REMEDIES UNDER THE LOAN DOCUMENTS; AND (F) TO
THIRD-PARTY SERVICE PROVIDERS OF BANK SO
12
LONG AS SUCH SERVICE PROVIDERS HAVE EXECUTED A CONFIDENTIALITY AGREEMENT WITH
BANK WITH TERMS NO LESS RESTRICTIVE THAN THOSE CONTAINED HEREIN.
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.
Bank may