BORROWER'S
REPRESENTATION AND WARRANTY ON THAT DATE THAT THE REPRESENTATIONS AND WARRANTIES
IN SECTION 5 REMAIN TRUE, ACCURATE AND COMPLETE IN ALL MATERIAL RESPECTS;
PROVIDED, HOWEVER, THAT SUCH MATERIALITY QUALIFIER SHALL NOT BE APPLICABLE TO
ANY REPRESENTATIONS AND WARRANTIES THAT ALREADY ARE QUALIFIED OR MODIFIED BY
MATERIALITY IN THE TEXT THEREOF; AND PROVIDED, FURTHER THAT THOSE
REPRESENTATIONS AND WARRANTIES EXPRESSLY REFERRING TO A SPECIFIC DATE SHALL BE
TRUE, ACCURATE AND COMPLETE IN ALL MATERIAL RESPECTS AS OF SUCH DATE; AND
(C)
AS DETERMINED IN BANK'S REASONABLE BUSINESS
JUDGMENT, THERE HAS NOT BEEN A MATERIAL ADVERSE CHANGE.
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 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.
IN ADDITION TO AND
SUPPLEMENTAL OF THE REQUIREMENTS SET FORTH IN SECTION 3 OF THE LIBOR SUPPLEMENT,
SUBJECT TO THE PRIOR SATISFACTION OF ALL OTHER APPLICABLE CONDITIONS TO THE
MAKING OF AN ADVANCE SET FORTH IN THIS AGREEMENT, TO OBTAIN AN ADVANCE (OTHER
THAN ADVANCES UNDER SECTIONS 2.1.2 OR 2.1.4), 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 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 ADVANCES TO THE DESIGNATED DEPOSIT
ACCOUNT.
BANK MAY MAKE ADVANCES UNDER THIS AGREEMENT BASED ON INSTRUCTIONS FROM
A RESPONSIBLE OFFICER OR HIS OR HER DESIGNEE OR WITHOUT INSTRUCTIONS 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 AGREEMENT).
IF BORROWER SHALL ACQUIRE A COMMERCIAL TORT
CLAIM,
5
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 AGREEMENT,