in all material respects as of such
date.
3.3
COVENANT TO DELIVER.
BORROWER AGREES TO DELIVER TO BANK EACH ITEM
REQUIRED TO BE DELIVERED TO BANK UNDER THIS AGREEMENT AS A CONDITION PRECEDENT
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 THE MAKING OF ANY CREDIT
EXTENSION IN THE ABSENCE OF A REQUIRED ITEM SHALL BE IN BANK'S SOLE DISCRETION.
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 shall be and shall at all times continue to be
a first priority perfected security interest in the Collateral subject only to
Permitted Liens that are permitted to have priority over Bank's Liens hereunder.
If Borrower shall at any time acquire a commercial tort claim, Borrower shall
promptly notify Bank in a writing signed by Borrower of the general details
thereof and grant to Bank in such writing a security interest therein and in the
proceeds thereof, all upon the terms of this Agreement, with such writing to be
in form and substance satisfactory to Bank.
IF THIS AGREEMENT IS TERMINATED, BANK'S LIEN IN THE COLLATERAL SHALL CONTINUE
UNTIL THE OBLIGATIONS (OTHER THAN INCHOATE INDEMNITY OBLIGATIONS) ARE REPAID IN
FULL IN CASH.
UPON PAYMENT IN FULL IN CASH OF THE OBLIGATIONS (OTHER THAN
INCHOATE INDEMNITY OBLIGATIONS) AND AT SUCH TIME AS THIS AGREEMENT HAS BEEN
TERMINATED, BANK PROMPTLY SHALL, AT BORROWER'S SOLE COST AND EXPENSE, EXECUTE
AND DELIVER TO BORROWER APPROPRIATE DOCUMENTATION RELEASING ITS LIENS IN THE
COLLATERAL AND ALL RIGHTS THEREIN SHALL REVERT TO BORROWER.
7
4.2
AUTHORIZATION TO FILE FINANCING STATEMENTS.
BORROWER HEREBY
AUTHORIZES BANK TO FILE FINANCING STATEMENTS, WITHOUT NOTICE TO BORROWER, WITH
ALL APPROPRIATE JURISDICTIONS TO PERFECT OR PROTECT BANK'S INTEREST OR RIGHTS
HEREUNDER, INCLUDING A NOTICE THAT ANY DISPOSITION OF THE COLLATERAL, BY EITHER
BORROWER OR ANY OTHER PERSON, EXCEPT AS PERMITTED BY THIS AGREEMENT, SHALL BE
DEEMED TO VIOLATE THE RIGHTS OF BANK UNDER THE CODE.
ANY SUCH FINANCING
STATEMENTS MAY INDICATE THE COLLATERAL AS "ALL ASSETS OF THE DEBTOR" OR WORDS OF
SIMILAR EFFECT, OR AS BEING OF AN EQUAL OR LESSER SCOPE, OR WITH GREATER DETAIL,
ALL IN BANK'S DISCRETION; PROVIDED, HOWEVER THAT SUCH FINANCING STATEMENTS
EXPRESSLY EXCLUDE THE REAL PROPERTY LOCATED AT 968 ALBANY SHAKER ROAD, LATHAM,
NEW YORK 12110.
5
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants as follows:
5.1
DUE ORGANIZATION AND AUTHORIZATION.
BORROWER AND EACH OF ITS
SUBSIDIARIES ARE DULY EXISTING AND IN GOOD STANDING AS REGISTERED ORGANIZATIONS
IN THEIR RESPECTIVE JURISDICTIONS OF FORMATION AND ARE QUALIFIED AND LICENSED TO
DO BUSINESS AND