all of the following
property in which it now has or at any time in the future may acquire any right,
title or interest: all Accounts; all Deposit Accounts, all other bank accounts
and all funds on deposit therein; all money, cash and cash equivalents; all
Investment Property; all stock;
all Goods (including Inventory, Equipment and
Fixtures); all Chattel Paper, Documents and Instruments; all Books and Records;
all General Intangibles (including all Intellectual Property, contract rights,
choses in action, Payment Intangibles and Software); all Letter-of-Credit
Rights; all Supporting Obligations; and to the extent not otherwise included,
all Proceeds, tort claims, insurance claims and other rights to payment not
otherwise included in the foregoing and products of all and any of the foregoing
and all accessions to, substitutions and replacements for, and rents and profits
of, each of the foregoing, but excluding in all events Hazardous Waste (all of
the foregoing, together with any other collateral pledged to the Lender pursuant
to any other Loan Document, collectively, the "Collateral").
(B)
BORROWER AND LENDER AGREE THAT THIS AGREEMENT CREATES, AND IS
INTENDED TO CREATE, VALID AND CONTINUING LIENS UPON THE COLLATERAL IN FAVOR OF
LENDER.
BORROWER EXECUTING THIS AGREEMENT REPRESENTS, WARRANTS AND PROMISES TO
LENDER THAT: (I) BORROWER HAS RIGHTS IN AND THE POWER TO TRANSFER EACH ITEM OF
THE COLLATERAL UPON WHICH IT PURPORTS TO GRANT A LIEN PURSUANT TO THE LOAN
DOCUMENTS, FREE AND CLEAR OF ANY AND ALL LIENS OR CLAIMS OF OTHERS, OTHER THAN
PERMITTED ENCUMBRANCES; (II) THE SECURITY INTERESTS GRANTED PURSUANT TO THIS
AGREEMENT, UPON FILING OF UNIFORM COMMERCIAL CODE FINANCING STATEMENTS IN THE
JURISDICTIONS LISTED ON DISCLOSURE SCHEDULE (6.1) WILL CONSTITUTE VALID
PERFECTED SECURITY INTERESTS IN ALL OF THE COLLATERAL (TO THE EXTENT SUCH
COLLATERAL MAY BE PERFECTED BY FILING OF A FINANCING STATEMENT) IN FAVOR OF THE
LENDER AS SECURITY FOR THE PROMPT AND
17
COMPLETE PAYMENT AND PERFORMANCE OF THE OBLIGATIONS, ENFORCEABLE IN ACCORDANCE
WITH THE TERMS HEREOF AGAINST ANY AND ALL CREDITORS OF AND PURCHASERS FROM
BORROWER (OTHER THAN PURCHASERS OF INVENTORY IN THE ORDINARY COURSE OF BUSINESS)
AND SUCH SECURITY INTERESTS ARE PRIOR TO ALL OTHER LIENS ON THE COLLATERAL IN
EXISTENCE ON THE DATE HEREOF EXCEPT FOR PERMITTED ENCUMBRANCES THAT HAVE
PRIORITY BY OPERATION OF LAW; AND (III) NO EFFECTIVE SECURITY AGREEMENT,
MORTGAGE, DEED OF TRUST, FINANCING STATEMENT, EQUIVALENT SECURITY OR LIEN
INSTRUMENT OR CONTINUATION STATEMENT COVERING ALL OR ANY PART OF THE COLLATERAL
IS OR WILL BE ON FILE OR OF RECORD IN ANY PUBLIC OFFICE, EXCEPT THOSE RELATING
TO PERMITTED ENCUMBRANCES.
BORROWER PROMISES TO DEFEND THE RIGHT, TITLE AND
INTEREST OF LENDER IN AND TO THE COLLATERAL AGAINST THE CLAIMS AND DEMANDS OF
ALL PERSONS WHOMSOEVER, AND EACH SHALL TAKE SUCH ACTIONS, INCLUDING (A) ALL
ACTIONS NECESSARY TO GRANT LENDER "CONTROL" OF ANY INVESTMENT PROPERTY, DEPOSIT
ACCOUNTS, LETTER-OF-CREDIT RIGHTS OR ELECTRONIC CHATTEL PAPER OWNED BY BORROWER,
WITH ANY AGREEMENTS ESTABLISHING CONTROL TO BE IN FORM AND SUBSTANCE
SATISFACTORY TO LENDER, (B) THE PROMPT DELIVERY OF ALL ORIGINAL INSTRUMENTS,