MATERIAL ADVERSE DEVIATION BY BORROWER FROM THE MOST
RECENT BUSINESS PLAN OF BORROWER PRESENTED TO AND ACCEPTED BY BANK.
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 the extension of a Credit Extension 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 extension in the absence of a required item
shall be 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 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 NOON EASTERN
TIME ON THE FUNDING DATE OF THE ADVANCE. TOGETHER WITH ANY SUCH ELECTRONIC OR
FACSIMILE NOTIFICATION, BORROWER SHALL DELIVER TO BANK BY ELECTRONIC MAIL OR
FACSIMILE A COMPLETED PAYMENT/ADVANCE FORM EXECUTED BY A RESPONSIBLE OFFICER OR
HIS OR HER DESIGNEE. BANK MAY RELY ON ANY TELEPHONE NOTICE GIVEN BY A PERSON
WHOM BANK REASONABLY BELIEVES IS A RESPONSIBLE OFFICER OR 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.
4
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 WITH A VALUE IN EXCESS OF ONE HUNDRED THOUSAND DOLLARS ($100,000.00),
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, WITH SUCH WRITING TO BE IN FORM AND SUBSTANCE REASONABLY
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 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