THERE HAS
NOT BEEN A MATERIAL ADVERSE CHANGE; AND
(E)
THE EXIM GUARANTY SHALL BE IN FULL FORCE AND EFFECT.
3.3
COVENANT TO DELIVER.
BORROWER AGREES TO DELIVER TO BANK EACH ITEM
REQUIRED TO BE DELIVERED TO BANK UNDER THIS EXIM AGREEMENT AS A CONDITION TO ANY
CREDIT EXTENSION.
BORROWER EXPRESSLY AGREES THAT A CREDIT EXTENSION MADE PRIOR
TO THE RECEIPT BY BANK OF ANY SUCH ITEM SHALL NOT CONSTITUTE A WAIVER BY BANK OF
BORROWER'S OBLIGATION TO DELIVER SUCH ITEM, AND ANY SUCH CREDIT EXTENSION IN THE
ABSENCE OF A REQUIRED ITEM SHALL BE MADE IN BANK'S SOLE DISCRETION.
3.4
PROCEDURES FOR BORROWING.
SUBJECT TO THE PRIOR SATISFACTION OF ALL
OTHER APPLICABLE CONDITIONS TO THE MAKING OF AN ADVANCE SET FORTH IN THIS EXIM
AGREEMENT, TO OBTAIN AN EXIM ADVANCE, BORROWER SHALL NOTIFY BANK (WHICH NOTICE
SHALL BE IRREVOCABLE) BY ELECTRONIC MAIL, FACSIMILE, OR TELEPHONE BY 12:00 P.M.
PACIFIC TIME ON THE FUNDING DATE OF THE EXIM ADVANCE.
TOGETHER WITH SUCH
NOTIFICATION, BORROWER MUST PROMPTLY DELIVER TO BANK BY ELECTRONIC MAIL OR
FACSIMILE A COMPLETED TRANSACTION REPORT EXECUTED BY A RESPONSIBLE OFFICER OR
HIS OR HER DESIGNEE.
BANK SHALL CREDIT EXIM ADVANCES TO THE DESIGNATED DEPOSIT
ACCOUNT.
BANK MAY MAKE EXIM ADVANCES UNDER THIS AGREEMENT BASED ON INSTRUCTIONS
FROM A RESPONSIBLE OFFICER OR HIS OR HER DESIGNEE OR WITHOUT INSTRUCTIONS
4
IF THE ADVANCES ARE NECESSARY TO MEET OBLIGATIONS WHICH HAVE BECOME DUE.
BANK
MAY RELY ON ANY TELEPHONE NOTICE GIVEN BY A PERSON WHOM BANK BELIEVES IS A
RESPONSIBLE OFFICER OR DESIGNEE.
4
CREATION OF SECURITY INTEREST
4.1
GRANT OF SECURITY INTEREST.
BORROWER HEREBY GRANTS BANK, TO SECURE
THE PAYMENT AND PERFORMANCE IN FULL OF ALL OF THE OBLIGATIONS, A CONTINUING
SECURITY INTEREST IN, AND PLEDGES TO BANK, THE COLLATERAL, WHEREVER LOCATED,
WHETHER NOW OWNED OR HEREAFTER ACQUIRED OR ARISING, AND ALL PROCEEDS AND
PRODUCTS THEREOF.
BORROWER REPRESENTS, WARRANTS, AND COVENANTS THAT THE
SECURITY INTEREST GRANTED HEREIN IS AND SHALL AT ALL TIMES CONTINUE TO BE A
FIRST PRIORITY PERFECTED SECURITY INTEREST IN THE COLLATERAL (SUBJECT ONLY TO
PERMITTED LIENS THAT MAY HAVE SUPERIOR PRIORITY TO BANK'S LIEN UNDER THIS EXIM
AGREEMENT).
IF BORROWER SHALL ACQUIRE A COMMERCIAL TORT CLAIM, BORROWER SHALL
PROMPTLY NOTIFY BANK IN A WRITING SIGNED BY BORROWER OF THE GENERAL DETAILS
THEREOF AND UPON REQUEST OF BANK GRANT TO BANK IN SUCH WRITING A SECURITY
INTEREST THEREIN AND IN THE PROCEEDS THEREOF, ALL UPON THE TERMS OF THIS EXIM
AGREEMENT, WITH SUCH WRITING TO BE IN FORM AND SUBSTANCE REASONABLY SATISFACTORY
TO BANK.
Bank's lien and security interest in the Collateral shall continue until
Borrower fully satisfies its Obligations in cash.
Upon payment in full in cash
of the Obligations (except for contingent indemnification obligations for which
no claim has been made) and at such time as Bank's obligation to make Credit
Extensions has terminated, Bank shall, at Borrower's sole cost and expense,
release its Liens in the Collateral and all rights therein shall revert to
Borrower.
Notwithstanding the foregoing, it is expressly