DIFFERENT PARTIES ON SEPARATE COUNTERPARTS, EACH
OF WHICH, WHEN EXECUTED AND DELIVERED, IS AN ORIGINAL, AND ALL TAKEN TOGETHER,
CONSTITUTE ONE AGREEMENT.
12.9
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 12.3 TO INDEMNIFY THE INDEMNIFIED PERSONS SHALL SURVIVE
UNTIL ALL STATUTES OF LIMITATION WITH RESPECT TO THE CLAIMS, LOSSES AND EXPENSES
FOR WHICH INDEMNITY IS GIVEN SHALL HAVE RUN.
12.10
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 ITS COMMERCIALLY REASONABLE EFFORTS TO OBTAIN ANY 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 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 IS EITHER: (I) 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) DISCLOSED TO BANK BY A THIRD PARTY, IF BANK DOES NOT
KNOW THAT THE THIRD PARTY IS PROHIBITED FROM DISCLOSING THE INFORMATION.
22
Bank may use confidential information for the development of databases,
reporting purposes, and market analysis so long as such confidential information
is aggregated and anonymized prior to distribution unless otherwise expressly
permitted by Borrower.
The provisions of the immediately preceding sentence
shall survive the termination of this Agreement.
12.11
ATTORNEYS' FEES, COSTS AND EXPENSES.
IN ANY ACTION OR
PROCEEDING BETWEEN BORROWER AND BANK ARISING OUT OF OR RELATING TO THE LOAN
DOCUMENTS, THE PREVAILING PARTY SHALL BE ENTITLED TO RECOVER ITS REASONABLE
ATTORNEYS' FEES AND OTHER COSTS AND EXPENSES INCURRED, IN ADDITION TO ANY OTHER
RELIEF TO WHICH IT MAY BE ENTITLED.
12.12
ELECTRONIC EXECUTION OF DOCUMENTS.
THE WORDS "EXECUTION,"
"SIGNED," "SIGNATURE" AND WORDS OF LIKE IMPORT IN ANY LOAN DOCUMENT SHALL BE
DEEMED TO INCLUDE ELECTRONIC SIGNATURES OR THE KEEPING OF RECORDS IN ELECTRONIC
FORM, EACH OF WHICH SHALL BE OF THE SAME LEGAL EFFECT, VALIDITY AND
ENFORCEABILITY AS A MANUALLY EXECUTED SIGNATURE OR THE USE OF A PAPER-BASED
RECORDKEEPING SYSTEMS, AS THE CASE MAY BE, TO THE EXTENT AND AS PROVIDED FOR IN
ANY APPLICABLE LAW, INCLUDING, WITHOUT LIMITATION, ANY STATE LAW BASED ON THE
UNIFORM ELECTRONIC TRANSACTIONS ACT.
12.13
CAPTIONS.
THE