SECURITY AGREEMENT
Exhibit 10.2
SECURITY AGREEMENT (this agreement, together with all amendments and restatements, this
“Agreement”), dated as of December 29, 2009, made by PMC COMMERCIAL TRUST, a real estate
investment trust organized under the laws of the State of Texas (the “Debtor”), in favor of
JPMorgan Chase Bank, National Association, as Administrative Agent, as secured party
(Administrative Agent in such capacity, the “Secured Party”), for Secured Party and the
benefit of each Lender.
BACKGROUND.
JPMorgan Chase Bank, National Association, as Administrative Agent, the Lenders party thereto,
and Debtor, entered into the Credit Agreement dated as of February 29, 2004 (such agreement,
together with all amendments and restatements thereto, the “Credit Agreement”).
It is the intention of the parties hereto that this Agreement create a first priority security
interest in property of Debtor in favor of Secured Party for Secured Party and the benefit of
Lenders securing the payment and performance of the Secured Obligations.
AGREEMENT.
NOW, THEREFORE, in consideration of the premises set forth herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in order
to induce Lenders to make the Loans under the Credit Agreement and to extend other credit and
financial accommodations under the Credit Documents, Debtor hereby agrees with the Secured Party,
for its benefit and the benefit of Lenders, and each Lender as follows:
ARTICLE I
Definitions
SECTION 1.01. Definitions. For purposes of this Agreement:
“Accession” means all right, title, and interest of Debtor (in each case whether now
or hereafter existing, owned, arising, or acquired) in and to an accession (as defined in the UCC),
and (whether or not included in that definition), a good that is physically united with another
good in such a manner that the identity of the original good is not lost.
“Account” means all right, title, and interest of Debtor (in each case whether now or
hereafter existing, owned, arising, or acquired) in and to an account (as defined in the UCC), and
(whether or not included in such definition), a right to payment of a monetary obligation, whether
or not earned by performance for property that has been or is to be sold, leased, licensed,
assigned, or otherwise disposed of, and for service rendered or to be rendered, and all right,
title, and interest in any returned property, together with all rights, titles, securities, and
guarantees with respect thereto, including any rights to stoppage in transit, replevin,
reclamation, and resales, and all related Liens whether voluntary or involuntary.
“Account Debtor” means any Person who is or who may become obligated to Debtor under,
with respect to or on account of an Account.
“Acquisition Rights” means each warrant, option, instrument, subscription right,
redemption right and other right (including any instrument or right convertible into an Equity
Interest) to acquire or sell any Equity Interest in First Western.
“Collateral” means (a) all Accounts in respect of the Pledged Debt, (b) Deposit Box,
(c) all Pledged Equity Interests, (d) all General Intangibles related to or arising in respect of
the Pledged Debt or the Pledged Equity Interests, (e) all Instruments evidencing, related to or
arising in connection with the Pledged Debt, (f) all Payment Intangibles related to or arising in
connection with Pledged Debt, (g) all Pledged Debt, (h) all supporting obligations related to or
arising in respect of the Pledged Debt, (i) all Proceeds, (j) all products and (k) all Collateral
Records.
“Collateral Records” means books, records, ledger cards, files, correspondence,
customer lists, blueprints, technical specifications, manuals, computer software, computer
printouts, tapes, disks and related data processing software and similar items that at any time
evidence or contain information relating to any of the Collateral or are otherwise necessary or
helpful in the collection thereof or realization thereupon.
“Deposit Box” means all right, title, and interest of Debtor (in each case whether now
or hereafter existing, owned, arising, or acquired) in and to the Deposit Box (as defined in the
Credit Agreement), and (whether or not included in such definition), all items contained therein.
“Equity Interests” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity ownership
interests in a Person, and any warrants, options or other rights entitling the holder thereof to
purchase or acquire any such equity interest.
“Event of Default” has the meaning assigned to such term in the Credit Agreement.
“General Intangible” means all right, title, and interest of Debtor (in each case
whether now or hereafter existing, owned, arising, or acquired) in and to a general intangible (as
defined in the UCC), and (whether or not included in such definition), all personal property,
including things in action, other than Accounts, chattel paper, commercial tort claims, deposit
accounts, documents, goods, Instruments, investment property, letter-of-credit rights, letters of
credit, money, and oil, gas or other minerals before extraction.
“Instrument” means all right, title, and interest of Debtor (in each case whether now
or hereafter existing, owned, arising, or acquired) in and to an instrument (as defined in the
UCC), and (whether or not included in such definition), a negotiable instrument or any other
writing that evidences a right to the payment of a monetary obligation, is not itself a security
agreement or lease, and is of a type that in ordinary course of business is transferred by delivery
with any necessary indorsement or assignment.
Security Agreement — Page 2
“Insurance” means all insurance policies for which Debtor is the owner, an insured, an
additional insured, beneficiary or loss payee, including any policy covering any or all of the
Collateral (regardless of whether Secured Party is the loss payee thereof).
“MERSCORP” means MERSCORP, Inc.
“MERS System” means MERSCORP’s mortgage electronic registry system.
“Money” means “money” as defined in the UCC.
“Organization Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constituent documents with
respect to any entity organized under the laws of a jurisdiction other than the United States, a
State or other political subdivision thereof or the District of Columbia); (b) with respect to any
limited liability company, the certificate or articles of formation or organization and operating
agreement (or equivalent or comparable constituent documents with respect to any entity organized
under the laws of a jurisdiction other than the United States, a State or other political
subdivision thereof or the District of Columbia); and (c) with respect to any partnership, joint
venture, trust or other form of business entity, the certificate or articles of partnership, the
partnership, joint venture or other applicable agreement of formation or organization (or
equivalent or comparable constituent documents with respect to any entity organized under the laws
of a jurisdiction other than the United States, a State or other political subdivision thereof or
the District of Columbia) and any agreement, instrument, filing or notice with respect thereto
filed in connection with its formation or organization with the applicable Governmental Authority
in the jurisdiction of its formation or organization and, if applicable, any other governance
agreement or voting agreement or similar agreement.
“Payment Intangible” means all right, title, and interest of Debtor (in each case
whether now or hereafter existing, owned, arising, or acquired) in and to a payment intangible (as
defined in the UCC), and (whether or not included in such definition), a General Intangible under
which the Account Debtor’s principal obligation is a monetary obligation.
“Permit” means all right, title, and interest of Debtor (in each case whether now or
hereafter existing, owned, arising, or acquired) in and to any authorization, consent, approval,
permit, license or exemption of, registration or filing with, or report or notice to, any
Governmental Authority.
“Pledged Debt” means collectively, (a) all indebtedness owed to Debtor, the
instruments evidencing such indebtedness, and all interest, cash, instruments and other property or
proceeds from time to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of such indebtedness, (b) all right, title and interest of Debtor in and to
all loan agreements, mortgages, deeds of trust, other notes, security agreements, chattel
mortgages, assignments of rent and other security instruments whether now or hereafter owned,
acquired or held by Debtor which evidence or secure (or constitute collateral for any note,
instrument or agreement securing) the indebtedness described in clause (a) above, (c) all
right, title and interest of Debtor in and to all guaranties and other instruments by which any
Person executing the same guarantee, among other things, the indebtedness described in
clause (a) above, (d) all right, title
and interest of Debtor to all title insurance reports, title insurance binders, commitments
and reports relating to any indebtedness described in clause (a), and (e) all right, title
and interest to all surveys, insurance policies, participation agreements or any other agreement,
instrument or document pertaining to, affecting, obtained by Debtor in connection with, or arising
out of, the indebtedness described in clause (a) above.
Security Agreement — Page 3
“Pledged Equity Interests” means all Acquisition Rights and Pledged Stock.
“Pledged Stock” means all interests of Debtor (in each case whether now or hereafter
existing, owned, arising, or acquired) in any capital stock and other equity interest in First
Western and the certificates, if any, representing such shares and any interest of Debtor on the
books of the issuer of such shares or on the books of any securities intermediary pertaining to
such shares, and all dividends, distributions, cash, warrants, rights, options, instruments,
securities and other property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such shares.
“Proceeds” means all right, title, and interest of Debtor (in each case whether now or
hereafter existing, owned, arising, or acquired) in and to proceeds (as defined in the UCC), and
(whether or not included in such definition), (a) whatever is acquired upon the sale, lease,
license, exchange, or other disposition of the Collateral, (b) whatever is collected on, or
distributed on account of, the Collateral, (c) rights arising out of the Collateral, (d) claims
arising out of the loss, nonconformity, or interference with the use of, defects or infringement of
rights in, or damage to the Collateral, (e) proceeds of Insurance, including insurance payable by
reason of the loss or nonconformity of, defects or infringement of rights in, or damage to the
Collateral, and (f) any and all other amounts from time to time paid or payable under or in
connection with any of the Collateral.
“Record” means information that is inscribed on a tangible medium or that is stored in
an electronic or other medium and is retrievable in perceivable form.
“Release Date” means the date on which all of the following are satisfied:
(a) Secured Party and each Lender have received in cash indefeasible payment of all Obligations
owed to it, and (b) each Lender has no obligation to extend credit to or for the benefit of
Borrower or any Subsidiary pursuant to any Credit Document.
“Secured Obligations” means, collectively, all Obligations.
“UCC” means Chapters 8 and 9 of the Uniform Commercial Code as in effect from time to
time in the State of Texas or, where applicable as to specific items or types of Collateral, any
other relevant state.
SECTION 1.02. Other Definitional Provisions. Capitalized terms not otherwise defined
herein have the meaning specified in the Credit Agreement, and, to the extent of any conflict,
terms as defined herein shall control (provided, that a more expansive or explanatory
definition shall not be deemed a conflict).
Security Agreement — Page 4
SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms. The words
“include”, “includes” and “including” shall be deemed to be followed by the phrase “without
limitation”. The word “will” shall be construed to have the same meaning and effect as the word
“shall”. Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications set forth herein or
any other Credit Document, (b) any reference herein to any Person shall be construed to include
such Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words
of similar import, shall be construed to refer to this Agreement in its entirety and not to any
particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words “asset” and “property” shall be construed to have the same meaning
and effect and to refer to any and all tangible and intangible assets and properties, including
cash, securities, accounts and contract rights. This Agreement is a Credit Document.
ARTICLE II
Grant of Security Interest
SECTION 2.01. Assignment and Grant of Security Interest. As security for the payment
and performance, as the case may be, in full of the Secured Obligations, Debtor hereby assigns to,
and pledges and grants to Secured Party, for it and the benefit of Lenders, a security interest in
the entire right, title, and interest of Debtor in and to all Collateral, whether now or hereafter
existing, owned, arising or acquired.
SECTION 2.02. Debtor Remains Liable. Anything herein to the contrary notwithstanding,
(a) Debtor shall remain liable with respect to and under all Collateral, (b) the exercise by
Secured Party or any other Lender of any of the rights hereunder shall not release Debtor from any
of its duties or obligations with respect to or under any Collateral or under this Agreement, and
(c) neither Secured Party nor any other Lender shall have any obligation or liability with respect
to or under any Collateral by reason of this Agreement, nor shall Secured Party or any other Lender
be obligated to perform any of the obligations or duties of Debtor thereunder or to take any action
to collect or enforce any claim for payment assigned hereunder.
SECTION 2.03. Future Advances. Debtor acknowledges that the Credit Documents provide
for future advances and this Agreement secures performance of such future advances.
SECTION 2.04. Limited Exclusions. Notwithstanding anything herein to the contrary, in
no event shall the security interest granted in Section 2.01 attach to any lease, license,
contract, property rights or agreement to which Debtor is a party or any of its rights or interests
thereunder if and for so long as the grant of such security interest shall constitute or result in
the abandonment, termination pursuant to the terms of, or a breach or default under, any such
lease, license, contract, property rights or agreement (other than to the extent that any such term
would be rendered ineffective pursuant to Sections 9.406, 9.407, 9.408 or 9.409 of the UCC (or any
successor provision or provisions) of any relevant jurisdiction or any other applicable law
(including the United States Bankruptcy Code) or principles of equity); provided,
however, that such security interest shall attach immediately at such time as the condition
causing such abandonment, invalidation or unenforceability shall be remedied and to the extent
severable, shall attach immediately to any portion of such lease, license, contract, property
rights or agreement that does not result in any of the consequences specified above. So long as
any property of Debtor is excluded from the security interest granted in Section 2.01
pursuant to the immediately preceding sentence, such property shall be excluded from the term
“Collateral” for all purposes hereunder.
Security Agreement — Page 5
ARTICLE III
Representations and Warranties
SECTION 3.01. Representations and Warranties. Debtor represents and warrants to
Secured Party and each Lender with respect to itself and the Collateral that:
(a) This Agreement and the grant of the security interest pursuant to this Agreement in the
Collateral create a valid security interest in favor of Secured Party for the benefit of Lenders in
the Collateral (subject to Permitted Liens), securing the payment and performance of the Secured
Obligations. All filings and other actions necessary to perfect and protect such security interest
and assure that such security interest in first priority have been duly taken (or will be taken
upon Debtor obtaining rights in Collateral after the date hereof) and, upon the filing of UCC-1
financing statements for Debtor, in the form delivered by Debtor to Secured Party on or prior to
the date of this Agreement and in the filing offices listed on Schedule 1,
Section (b) and upon obtaining authentication control agreements for Collateral requiring a
control agreement for perfection, all filings and other actions necessary to perfect and protect
such security interest and such priority have been duly taken (or will be taken upon Debtor
obtaining rights in Collateral after the date hereof); subject, however, with
respect to Proceeds, to the provisions of Section 9.315 of the UCC.
(b) Debtor has good and indefeasible title to, or a valid leasehold interest in, all of the
Collateral free and clear of any Lien, except for Permitted Liens. Debtor has not granted a
security interest or other Lien in or made an assignment of any of the Collateral (except for
Permitted Liens). Debtor has not entered into nor is its property subject to any agreement
limiting the ability of Debtor to xxxxx x Xxxx in property of Debtor, or the ability of Debtor to
agree to grant or not xxxxx x Xxxx in property of Debtor. No effective financing statement or
other similar effective document used to perfect and preserve a security interest or other Lien
under the laws of any jurisdiction covering all or any part of the Collateral is on file in any
recording office, except such as may have been filed (i) pursuant to this Agreement or other Credit
Document, or (ii) relating to Permitted Liens. Debtor has not sold any interest in any of its
Pledged Debt, Accounts related to or arising in connection with Pledged Debt, promissory notes, or
Payment Intangibles related to or arising in connection with Pledged Debt. No control agreement in
favor of anyone other than Secured Party exists with respect to any Collateral. If any of the
Pledged Debt has been subject to a securitization, such Pledged Debt has been conveyed to Debtor
free and clear of all Liens.
Security Agreement — Page 6
(c) Schedule 1, Section (a) states the exact name of Debtor, as such name
appears in its currently effective Organization Documents as filed with the appropriate authority
of the jurisdiction of Debtor’s organization to the extent applicable. Schedule 1,
Section (a) states the jurisdiction of organization of Debtor, the current type of entity
of Debtor, the Federal Taxpayer Identification Number of Debtor and the organizational
identification number of Debtor issued by Debtor’s jurisdiction of organization. Debtor is not
organized in more than one jurisdiction. Debtor has not changed its identity or type of entity or
name in any way within the past five years. Changes in identity or type of entity include mergers,
consolidations, acquisitions (including both equity and asset acquisitions), and any change in the
form, nature, or jurisdiction of organization. The chief executive officer of Debtor has not been
located at another address in the past five years.
(d) The chief executive office of Debtor is located at the address stated on
Schedule 2, Section (a). The chief executive officer of Debtor has not been
located at any other address during the past five years. Schedule 2, Section (c)
states the names and addresses of all Persons other than Debtor who have possession of any of the
Collateral or other property of Debtor.
(e) No consent of any other Person and no authorization, approval or other action by, and no
notice to or filing (other than filings required by the UCC) with, any Governmental Authority is
required (i) for the pledge by Debtor of the Collateral pledged by it hereunder, for the grant by
Debtor of the security interest granted hereby, or for the execution, delivery, or performance of
this Agreement by Debtor, (ii) for the perfection or maintenance of the pledge, assignment, and
security interest created hereby (including the first priority nature of such pledge, assignment,
and security interest) or (iii) for the enforcement of remedies by Secured Party or any other
Lender.
(f) Debtor possesses all Permits required for the operation of its business, except to the
extent that the failure to possess such Permits could not reasonably be expected to result in a
Material Adverse Event. All Permits of Debtor have been duly authorized and obtained, and are in
full force and effect, and Debtor is in compliance in all material respects with all provisions
thereof, except, in each case, to the extent that the failure to do so could not reasonably be
expected to result in a Material Adverse Event. No Permit is the subject of any pending or, to
Debtor’s best knowledge, threatened challenge or revocation, which challenge or revocation could
reasonably be expected to result in a Material Adverse Event.
(g) All of the Pledged Equity Interests have been duly and validly issued and are fully paid
and nonassessable and were not issued in violation of the preemptive rights of any party or of any
agreement by which Debtor or the issuer thereof is bound. No unpaid capital call exists with
respect to any Collateral. The interest of Debtor is the percentage of all authorized, issued and
outstanding Equity Interest of First Western as specified on Schedule (3), Section
(a). None of the Collateral is subject to any buy–sell, voting trust, preferential right to
purchase or similar agreement or any option, warrant, put or call or similar agreement.
Schedule 3 contains a complete and correct description of each certificate or other
instrument or agreement included in or evidencing the Pledged Equity Interests as of the date of
this Agreement. Schedule 3 lists the exact name of First Western, its jurisdiction of
organization, its organizational identification number as issued by the appropriate authority of
jurisdiction of
Security Agreement — Page 7
organization, its federal taxpayer identification number (if any), and the authorized, issued and outstanding Equity Interests of
First Western. All of the Pledged Equity Interests consisting of certificated securities have been
delivered to Secured Party. There are no Pledged Equity Interests other than that represented by
certificates in the possession of Secured Party. There are no restrictions in any Organization
Document governing any Pledged Equity Interest or any other document related thereto which would
limit or restrict (i) the grant of a Lien in the Pledged Equity Interests, (ii) the perfection of
such Lien, (iii) the exercise of remedies in respect of such perfected Lien in the Pledged Equity
Interests as contemplated by this Agreement or (iv) the admission of any transferee of the
Collateral as a shareholder, member, partner or equity holder of First Western.
(h) Debtor has delivered to Secured Party complete and correct copies of all Organization
Documents for First Western.
(i) None of the Collateral has been registered in the MERS System, and Debtor is not a member
in MERSCORP.
(j) None of the Pledged Debt is either insured by the Federal Housing Administration,
guaranteed by U.S. Department of Veteran Affairs, guaranteed by the Government National Mortgage
Association or the Small Business Association or has been sold to Xxxxxx Xxx or Xxxxxxx Mac.
(k) None of the Collateral is subject to a securitization.
ARTICLE IV
Covenants
SECTION 4.01. Delivery of Security and Instrument Collateral. All certificates
constituting or evidencing the Collateral shall be delivered to and held by or on behalf of Secured
Party pursuant hereto and shall be in suitable form for transfer by delivery, or shall be
accompanied by undated and duly executed stock powers or instruments of transfer or assignment in
blank, all in form and substance reasonably satisfactory to Secured Party. All Instruments
constituting or evidencing the Collateral shall be delivered to and held in the Deposit Box and
shall be in suitable form for transfer by delivery. On or before January 8, 2010, all Instruments
shall have affixed to them an endorsement or other instrument of transfer or assignment in blank,
all in form and substance reasonably satisfactory to Secured Party. If an Event of Default exists,
Secured Party has the right, without notice to Debtor, to transfer to or to register in the name of
Secured Party or any of its nominees any or all of such Collateral. In addition, Secured Party has
the right, if Secured Party reasonably determines that the exercise of such right is necessary to
protect its rights, at any time to exchange certificates or instruments representing or evidencing
Collateral for certificates or instruments of smaller or larger denominations. On or before
January 15, 2010, Debtor shall deliver to Secured Party a copy of Debtor’s key to the Deposit Box
and shall have taken all actions necessary to provide an authorized officer of Secured Party with
free access to the Deposit Box.
Security Agreement — Page 8
SECTION 4.02. Further Assurances.
(a) Debtor will, from time to time and at Debtor’s expense, promptly execute and deliver all
further instruments and documents (including the delivery of certificated securities and
supplements to all schedules), authenticate and file such financing or continuation statements, or
amendments thereto, and such other instruments or notices, as may be reasonably necessary, or as
Secured Party may reasonably request, in order to perfect and preserve the pledge, assignment, and
security interest granted or purported to be granted hereby, and take all further action that
Secured Party may reasonably request, in order to perfect and protect any pledge, assignment, or
security interest granted or purported to be granted hereby, and the priority thereof, or to enable
Secured Party to exercise and enforce Secured Party’s and other Lenders’ rights and remedies
hereunder with respect to any Collateral.
(b) In addition to such other information as shall be specifically provided for herein, Debtor
shall furnish to Secured Party such other information with respect to the Collateral as Secured
Party may reasonably request.
(c) Debtor authorizes Secured Party to file one or more financing or continuation statements,
and amendments thereto, relating to all or any part of the Collateral without the authentication of
Debtor where permitted by law and that (i) indicate the Collateral (A) as all assets of Debtor (or
words of similar effect), regardless of whether any particular asset included in the Collateral is
within the scope of UCC Article 9 of the state or such jurisdiction or whether such assets are
included in the Collateral, or (B) as being of an equal or lesser scope or with greater detail, and
(ii) contain any other information required by UCC Article 9 of the state or such jurisdiction for
the sufficiency or filing office acceptance of any financing statement, continuation or amendment,
including (A) whether Debtor is an organization, the type of organization, and any organization
identification number issued to Debtor and, (B) in the case of a financing statement filed as a
fixture filing or indicating Collateral to be fixtures, as-extracted collateral or timber to be
cut, a sufficient description of real property to which the Collateral relates. Debtor agrees to
furnish any such information to Secured Party promptly upon request. A photocopy or other
reproduction of this Agreement or any financing statement covering the Collateral or any part
thereof shall be sufficient as a financing statement where permitted by law. Debtor ratifies its
authentication and delivery of, and the filing of, any financing statement or amendment thereto
describing any of the Collateral which was filed prior to the date of this Agreement.
(d) Debtor shall pay promptly when due all taxes, assessments, and governmental charges or
levies imposed upon, and all claims (including claims for labor, materials, and supplies) against,
the Collateral except such taxes, assessments, and governmental charges or levies, and such claims,
as are being contested in good faith by appropriate proceedings for which adequate reserves have
been established in accordance with GAAP; provided, Debtor shall pay all such amounts prior
to any Lien attaching to any Collateral.
(e) Debtor shall, and shall cause each issuer of Collateral to, allow Secured Party to inspect
and copy all records related to the Collateral.
Security Agreement — Page 9
SECTION 4.03. Place of Perfection; Records; Collection of Collateral.
(a) Debtor shall not change the jurisdiction of its organization from the jurisdiction
specified in Schedule 1, Section (a), its type of entity from the type of entity
specified in Schedule 1, Section (a), its name from the name specified in
Schedule 1, Section (a), or its organizational identification number from the
organizational number specified in Schedule 1, Section (a), unless Debtor has
delivered to Secured Party 30 days prior written notice and taken such actions as Secured Party may
reasonably require with respect to such change. Debtor shall keep its chief executive office at
the address specified in Schedule 2, Section (a), and the office where it keeps its
records concerning the Accounts constituting any part of the Collateral and all Instruments
constituting any part of the Collateral at the address specified in Schedule 2,
Section (b), unless Debtor has delivered to Secured Party 30 days prior written notice and
taken such actions as Secured Party may reasonably require with respect to such change. Debtor
will hold and preserve such records and Instruments in a commercially reasonable manner.
(b) Except as otherwise provided in this Section 4.03(b), Debtor shall continue to
collect, in accordance with commercially reasonable procedures and at its own expense, all amounts
due or to become due Debtor under the Collateral. In connection with such collections, Debtor may
take (and, following the occurrence and during the continuation of an Event of Default, at Secured
Party’s direction, shall take) such action as Debtor or Secured Party may deem necessary or
advisable to enforce collection of the Collateral; provided, however, that Secured
Party shall have the right, if an Event of Default exists, without notice to Debtor, to notify the
Account Debtors or obligors under any Collateral of the assignment of such Collateral to Secured
Party and to direct such Account Debtors or obligors to make payment of all amounts due or to
become due to Debtor thereunder directly to Secured Party and, at the expense of Debtor, to enforce
collection of any such Collateral, and to adjust, settle or compromise the amount or payment
thereof, in the same manner and to the same extent as Debtor might have done or as Secured Party
reasonably deems appropriate. If any Event of Default exists, all amounts and proceeds (including
Instruments) received by Debtor in respect of the Collateral shall be received in trust for the
benefit of Secured Party hereunder, shall be segregated from other funds and property of Debtor and
shall be forthwith paid or delivered over to Secured Party in the same form as so received (with
any necessary endorsement) to be held as cash collateral, thereafter to be applied as provided in
the Credit Agreement. Debtor shall not adjust, settle, or compromise the amount or payment of any
Collateral, release wholly or partly any Account Debtor or obligor thereof, or allow any credit or
discount thereon, except in the ordinary course of business.
SECTION 4.04. [Intentionally Omitted.]
SECTION 4.05. Deposit Box. On or before 90 days after the date hereof, Debtor shall
cause the bank in which the Deposit Box is maintained to deliver to Secured Party acknowledgments
of the assignment of, and control agreements, with respect to the Deposit Box, in form and
substance reasonably satisfactory to Secured Party. Debtor shall not establish or maintain any new
Deposit Box, unless prior to the establishment of such new Deposit Box Debtor executes and delivers
to Secured Party assignments of, and control agreements with respect to, such new Deposit Box in
such form as Secured Party may reasonably request, and cause the bank in which such safety deposit
box is or will be maintained, to deliver to Secured
Party acknowledgments of the assignment of, and control agreements with respect to, such
Deposit Box, in form and substance reasonably satisfactory to Secured Party, and take all actions
necessary to establish in Secured Party control (as that term is defined in the UCC) with respect
to such Deposit Box, including without limitation, delivery of a copy of Debtor’s key to such
Deposit Box.
Security Agreement — Page 10
SECTION 4.06. [Intentionally Omitted.]
SECTION 4.07. Insurance. Debtor shall, at its own expense, maintain insurance in
accordance with the terms set forth in the Credit Agreement.
SECTION 4.08. Transfers and Other Liens. Debtor shall not (a) sell, assign (by
operation of law or otherwise) or otherwise dispose of, or grant any option with respect to, any of
the Collateral, except as permitted under the Credit Documents, or (b) create or permit to exist
any Lien, option, or other encumbrance upon or with respect to any of the Collateral, except for
Permitted Liens.
SECTION 4.09. Secured Party Appointed Attorney-in-Fact. Debtor hereby irrevocably
appoints Secured Party Debtor’s attorney-in-fact, with full authority in the place and stead of
Debtor and in the name of Debtor or otherwise to take any action and to execute any instrument
which Secured Party may deem reasonably necessary or advisable to accomplish the purposes of this
Agreement, including, without limitation (provided that the actions listed in each clause below
other than the obtainment and adjustment of insurance may only be taken or exercised if an Event of
Default exists):
(a) to obtain and adjust insurance required to be paid to Secured Party pursuant to
Section 4.07;
(b) to ask, demand, collect, xxx for, recover, compromise, receive, and give acquittance and
receipts for moneys due and to become due under or in connection with the Collateral;
(c) to receive, indorse, and collect any drafts or other Instrument constituting Collateral in
connection therewith;
(d) to file any claims or take any action or institute any proceedings which Secured Party may
deem necessary or desirable for the collection of any of the Collateral or otherwise to enforce
compliance with the terms and conditions of any Collateral or the rights of Secured Party with
respect to any of the Collateral;
(e) to amend, modify, extend, restate, or supplement any of the terms, conditions or other
provisions of the Pledged Debt; and
(f) to contact and negotiate directly with the borrowers under the Pledged Debt or the other
parties thereto, and take any other actions deemed reasonably necessary by Secured Party.
Security Agreement — Page 11
DEBTOR HEREBY IRREVOCABLY GRANTS TO SECURED PARTY DEBTOR’S PROXY (EXERCISABLE IF AN EVENT OF
DEFAULT EXISTS) TO VOTE ANY SECURITIES INCLUDED IN COLLATERAL AND APPOINTS SECURED PARTY DEBTOR’S ATTORNEY-IN-FACT TO
PERFORM ALL OBLIGATIONS OF DEBTOR UNDER THIS AGREEMENT AND TO EXERCISE ALL OF SECURED PARTY’S AND
EACH LENDER’S RIGHTS HEREUNDER. THE PROXY AND EACH POWER OF ATTORNEY HEREIN GRANTED, AND EACH
STOCK POWER AND SIMILAR POWER NOW OR HEREAFTER GRANTED (INCLUDING ANY EVIDENCED BY A SEPARATE
WRITING), ARE COUPLED WITH AN INTEREST AND ARE IRREVOCABLE PRIOR TO THE RELEASE DATE.
SECTION 4.10. Changes to Representations, Schedules. Not later than 30 days after the
day on which any information disclosed on any Schedule to this Agreement changed and at such other
times as required by this Agreement, Debtor shall deliver to Secured Party any updated Schedule
(provided, the delivery of any updated Schedule shall not be deemed a waiver of any
obligation of Debtor under any Credit Document and such updated Schedule shall not be effective
until it is accepted by Secured Party). Debtor shall promptly notify Secured Party of any change
in any representation herein and any information on any Schedule hereto if such change could
reasonably be expected to result in a Material Adverse Event.
SECTION 4.11. Rights to Dividends and Distributions. With respect to any Pledged
Equity Interests, Secured Party shall have authority if an Event of Default exists, without notice
to Debtor, either to have the same registered in Secured Party’s name or in the name of a nominee,
and, with or without such registration, to demand of First Western, and to receive and receipt for,
any and all dividends and distributions (including any stock or similar dividend or distribution)
payable in respect thereof, whether they be ordinary or extraordinary. If Debtor shall become
entitled to receive or shall receive any Equity Interests of First Western (including, without
limitation, any Equity Interest representing a dividend or a distribution in connection with any
reclassification, increase, or reduction of capital, or issued in connection with any
reorganization), or any option or rights arising from or relating to any Equity Interests, whether
as an addition to, in substitution of, as a conversion of, or in exchange for any of the Pledged
Equity Interests, or otherwise, or any Acquisition Rights, Debtor agrees to accept the same as
Secured Party’s agent and to hold the same in trust on behalf of and for the benefit of Secured
Party, and to deliver the same immediately to Secured Party in the exact form received, with
appropriate undated stock or similar powers, duly executed in blank, to be held by Secured Party,
subject to the terms hereof, as Collateral. Unless an Event of Default exists or will result
therefrom and subject to the Credit Agreement, Debtor shall be entitled to receive all cash
dividends or distributions (to the extent such dividend or distribution does not represent a return
of capital, a liquidating dividend or similar dividend or distribution) paid or distributed with
respect to the Pledged Equity Interests. Secured Party shall be entitled to all dividends and
distributions, and to any sums paid upon or in respect of any Pledged Equity Interests, upon the
liquidation, dissolution, or reorganization of First Western, which shall be paid to Secured Party
to be held by it as additional collateral security for and application to the Secured Obligations
as provided in the Credit Agreement. All dividends, distributions and Proceeds paid or distributed
in respect of the Pledged Equity Interests which are received by Debtor in violation of this
Agreement shall, until paid or delivered to Secured Party, be held by Debtor in trust as additional
collateral for the Secured Obligations.
Security Agreement — Page 12
SECTION 4.12. Right of Secured Party to Notify First Western. If an Event of Default
exists and at such other times as Secured Party is entitled to receive dividends, distributions and
other property in respect of or consisting of any Pledged Equity Interests, Secured Party may
notify First Western to make payments of all dividends, distributions and other property directly
to Secured Party and Secured Party may take control of all Proceeds of any Pledged Equity
Interests.
SECTION 4.13. Dilution of Ownership. As to any Pledged Equity Interests, Debtor will
not consent to or approve of the issuance of (a) any additional shares or units of any class of
Equity Interests of First Western (unless immediately upon issuance additional Equity Interests are
pledged and delivered to Secured Party pursuant to the terms hereof to the extent necessary to give
Secured Party a security interest after such issuance in at least the same percentage of First
Western’s outstanding securities or other Equity Interest as Secured Party had before such
issuance), (b) any instrument convertible voluntarily by the holder thereof or automatically upon
the occurrence or non-occurrence of any event or condition into, or exchangeable for, any such
securities or other Equity Interests, or (c) any warrants, options, contracts or other commitments
entitling any third party to purchase or otherwise acquire any such securities or other Equity
Interests.
SECTION 4.14. Restrictions on Securities. Debtor will not enter into any agreement
creating, or otherwise permit to exist, any restriction or condition upon the transfer, voting or
control of any Pledged Equity Interests, except as consented to in writing by Secured Party. No
certificate or other instrument evidencing or constituting any Pledged Equity Interest shall
contain any restriction on transfer or other legend not acceptable to Secured Party. With respect
to each certificate that contains any such legend that is not acceptable to Secured Party, Debtor
shall cause First Western to reissue such certificate in a form acceptable to Secured Party.
SECTION 4.15. Waiver. To the extent not prohibited by applicable law, Debtor, agrees
that any provision of any Organization Document of First Western, any applicable law or any other
agreement that in any manner restricts, prohibits or provides conditions to (a) the grant of a Lien
on any Equity Interest or other interest in First Western or any other Collateral, (b) any transfer
of any Equity Interest or other interest in First Western or any other Collateral, (c) any change
in management or control of First Western or (d) any other exercise by Secured Party or any other
Lender of any rights pursuant to this Agreement or any other Credit Document, or law shall not
apply to (i) the grant of any Lien hereunder, (ii) the execution, delivery and performance of this
Agreement by Debtor, (iii) the foreclosure or other realization upon any interest in any
Collateral, or (iv) the admission of any transferee of any Collateral as a shareholder, member,
partner or equity holder of First Western. Debtor shall not permit any amendment to or restatement
of any Organization Document, any other governance document or any agreement in any manner to
adversely affect Secured Party’s ability to foreclose on any Collateral or which conflicts with the
provisions of this Section 4.15 without the prior written consent of Secured Party.
Security Agreement — Page 13
ARTICLE V
Rights and Powers of Secured Party
SECTION 5.01. Secured Party May Perform. If Debtor fails to perform any agreement
contained herein, Secured Party may itself perform, or cause performance of, such agreement, and
the reasonable expenses of Secured Party incurred in connection therewith shall be payable by
Debtor under Section 5.07.
SECTION 5.02. Secured Party’s Duties. The powers conferred on Secured Party hereunder
are solely to protect Secured Party’s and Lenders’ interest in the Collateral and shall not impose
any duty upon it to exercise any such powers. Except for the safe custody of any Collateral in its
possession and the accounting for moneys actually received by Secured Party and Lenders hereunder,
neither Secured Party nor any other Lender shall have any duty as to any Collateral, as to
ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders,
or other matters relative to any Collateral, whether or not Secured Party or any other Lender has
or is deemed to have knowledge of such matters, or as to the taking of any necessary steps to
preserve rights against prior parties or any other rights pertaining to any reasonable care in the
custody and preservation of any Collateral in its possession if such Collateral is accorded
treatment substantially equal to that which Secured Party accords its own property. Except as
provided in this Section 5.02, neither Secured Party nor any other Lender shall have any
duty or liability to protect or preserve any Collateral or to preserve rights pertaining thereto.
Nothing contained in this Agreement shall be construed as requiring or obligating Secured Party or
any other Lender, and neither Secured Party nor any other Lender shall be required or obligated, to
(a) present or file any claim or notice or take any action, with respect to any Collateral or in
connection therewith or (b) notify Debtor of any decline in the value of any Collateral.
SECTION 5.03. [Intentionally Omitted.]
SECTION 5.04. Remedies. If an Event of Default exists:
(a) Secured Party may exercise in respect of the Collateral, in addition to other rights and
remedies provided for herein or otherwise available to it or any Lender pursuant to any applicable
law, all the rights and remedies of a secured party on default under the UCC (whether or not the
UCC applies to the affected Collateral), and also may require Debtor to, and Debtor will at its
expense and upon request of Secured Party forthwith, assemble all or part of the Collateral as
directed by Secured Party and make it available to Secured Party at a place to be designated by
Secured Party which is reasonably convenient to both parties at public or private sale, at any of
Secured Party’s offices or elsewhere, for cash, on credit or for future delivery, and upon such
other terms as Secured Party may deem commercially reasonable. Debtor agrees that, to the extent
notice of sale shall be required by law, ten days’ notice to Debtor of the time and place of any
public sale or the time after which any private sale is to be made shall constitute reasonable
notification. Secured Party shall not be obligated to make any sale of Collateral regardless of
notice of sale having been given. Secured Party may adjourn any public or private sale from time
to time by announcement at the time and place fixed therefor, and such sale may, without further
notice, be made at the time and place to which it was so adjourned.
Security Agreement — Page 14
(b) All cash proceeds received by Secured Party upon any sale of, collection of, or other
realization upon, all or any part of the Collateral shall be applied as provided in the Credit
Agreement.
(c) All payments received by Debtor under or in connection with any Collateral shall be
received in trust for the benefit of Secured Party, shall be segregated from other funds of Debtor,
and shall be forthwith paid over to Secured Party in the same form as so received (with any
necessary indorsement).
(d) Because of the Securities Act of 1933, as amended (“Securities Act”), and other
laws, including without limitation state “blue sky” Laws, or contractual restrictions or
agreements, there may be legal restrictions or limitations affecting Secured Party in any attempts
to dispose of the Collateral and the enforcement of rights under this Agreement. For these
reasons, Secured Party is authorized by Debtor, but not obligated, if any Event of Default exists,
to sell or otherwise dispose of any of the Collateral at private sale, subject to an investment
letter, or in any other manner which will not require the Collateral, or any part thereof, to be
registered in accordance with the Securities Act, or any other law. Secured Party is also hereby
authorized by Debtor, but not obligated, to take such actions, give such notices, obtain such
consents, and do such other things as Secured Party may deem required or appropriate under the
Securities Act or other securities laws or other laws or contractual restrictions or agreements in
the event of a sale or disposition of any Collateral. Debtor understands that Secured Party may in
its discretion approach a restricted number of potential purchasers and that a sale under such
circumstances may yield a lower price for the Collateral than would otherwise be obtainable if same
were registered and/or sold in the open market. No sale so made in good faith by Secured Party
shall be deemed to be not “commercially reasonable” because so made. Debtor agrees that if an
Event of Default exists, and Secured Party sells the Collateral or any portion thereof at any
private sale or sales, Secured Party shall have the right to rely upon the advice and opinion of
appraisers and other Persons, which appraisers and other Persons are acceptable to Secured Party,
as to the best price reasonably obtainable upon such a private sale thereof. In the absence of
actual fraud, such reliance shall be conclusive evidence that Secured Party and the other Lenders
handled such matter in a commercially reasonable manner under applicable law.
(e) After notice to Debtor, Secured Party and such Persons as Secured Party may reasonably
designate shall have the right, at Debtor’s own cost and expense, to verify under reasonable
procedures, the validity, amount, quality, quantity, value, condition, and status of, or any other
matter relating to, the Collateral, including, in the case of Accounts or Collateral in the
possession of any third person, by contacting Account Debtors or the third person possessing such
Collateral for the purpose of making such a verification. Secured Party shall have the absolute
right to share any information it gains from such inspection or verification with any Lender.
(f) For purposes of enabling Secured Party to exercise rights and remedies under this
Agreement, Debtor grants to Secured Party an irrevocable, nonexclusive license (exercisable without
payment of royalty or other compensation to Debtor or any other Person; provided, that if
the license granted to Secured Party is a sublicense, Debtor shall be solely responsible for, and
indemnify Secured Party and each Lender against, any royalty or other compensation payable to
Debtor’s licensor or other Person) to use all of Debtor’s software, and including in such license
reasonable access to all media in which any of the licensed items may be recorded and all
related manuals.
Security Agreement — Page 15
(g) For the purpose of enabling Secured Party to exercise rights and remedies under this
Agreement, Debtor grants to Secured Party an irrevocable, nonexclusive license (exercisable without
payment of royalty or other compensation to Debtor or any other Person; provided, that if
the license granted to Secured Party is a sublicense, Debtor shall be solely responsible for, and
indemnify Secured Party and Lenders against, any royalty or other compensation payable to Debtor’s
licensor or other Person) to use, license, or sub-license any of the Collateral consisting of
intellectual property and wherever the same may be located, and including in such license
reasonable access to all media in which any of the licensed items may be recorded or stored and to
all Software used for the use, compilation, or printout thereof. In connection therewith, Debtor
shall execute and deliver a license agreement to Secured Party to evidence the grant of such
license. The use of such license by Secured Party shall be exercised, at the option of Secured
Party, if an Event of Default exists; provided, that any license, sub-license, or other
transaction entered into by Secured Party in accordance herewith shall be binding upon Debtor
notwithstanding any subsequent cure or waiver of an Event of Default.
SECTION 5.05. Appointment of Receiver or Trustee. In connection with the exercise of
Secured Party’s rights under this Agreement or any other Credit Document, Secured Party may, if an
Event of Default exists, obtain the appointment of a receiver or trustee to assume, upon receipt of
any necessary judicial or other Governmental Authority consents or approvals, control of or
ownership of any Collateral. Such receiver or trustee shall have all rights and powers provided to
it by law or by court order or provided to Secured Party under this Agreement or any other Credit
Document. Upon the appointment of such trustee or receiver, Debtor shall cooperate, to the extent
necessary or appropriate, in the expeditious preparation, execution, and filing of an application
to any Governmental Authority or for consent to the transfer of control or assignment of such
Collateral to the receiver or trustee.
SECTION 5.06. Further Approvals Required.
(a) In connection with the exercise by Secured Party of rights under this Agreement that
affects the disposition of or use of any Collateral (including rights relating to the disposition
of or operation under any Permit), it may be necessary to obtain the prior consent or approval of
Governmental Authorities and other Persons to a transfer or assignment of Collateral. Debtor shall
execute, deliver, and file, and hereby appoints (to the extent not prohibited by applicable law)
Secured Party as its attorney (exercisable if an Event of Default exists), to execute, deliver, and
file on Debtor’s behalf and in Debtor’s name, all applications, certificates, filings, instruments,
and other documents (including without limitation any application for an assignment or transfer of
control or ownership) that may be necessary or appropriate, in Secured Party’s reasonable opinion,
to obtain such consents or approvals. Debtor shall use commercially reasonable efforts to obtain
the foregoing consents, waivers, and approvals, including receipt of consents, waivers, and
approvals under applicable agreements regardless of whether a Potential Default or Event of Default
exists.
(b) Debtor acknowledges that there is no adequate remedy at law for failure by it to comply
with the provisions of this Section 5.06 and that such failure would not be adequately
compensable in damages, and therefore agrees that this Section 5.06 may be
specifically enforced.
Security Agreement — Page 16
SECTION 5.07. Expenses.
(a) Debtor will upon demand pay to Secured Party (i) all reasonable out-of-pocket expenses
incurred by Secured Party and its Affiliates, including the reasonable fees, charges and
disbursements of counsel for Secured Party, in connection with the preparation and administration
of this Agreement or any amendments, modifications or waivers of the provisions hereof or thereof,
and (ii) all out-of-pocket expenses incurred by Secured Party, including the fees, charges and
disbursements of any counsel or advisor for Secured Party, in connection with the enforcement or
protection of its rights and the rights of Lenders in connection with this Agreement including all
such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect
of any of the Secured Obligations.
(b) DEBTOR SHALL INDEMNIFY SECURED PARTY AND EACH LENDER, AND EACH RELATED PARTY OF ANY OF THE
FOREGOING PERSONS (EACH SUCH PERSON BEING CALLED AN “INDEMNITEE”) AGAINST, AND HOLD EACH
INDEMNITEE HARMLESS FROM, ANY AND ALL LOSSES, CLAIMS, DAMAGES, LIABILITIES AND RELATED EXPENSES,
INCLUDING THE FEES, CHARGES AND DISBURSEMENTS OF ANY COUNSEL OR ADVISOR FOR ANY INDEMNITEE,
INCURRED BY OR ASSERTED AGAINST ANY INDEMNITEE ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT
OF (I) THE EXECUTION OR DELIVERY OF THIS AGREEMENT, ANY OTHER CREDIT DOCUMENT OR ANY AGREEMENT OR
INSTRUMENT CONTEMPLATED HEREBY OR THEREBY, THE PERFORMANCE BY THE PARTIES HERETO OF THEIR
RESPECTIVE OBLIGATIONS HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT OR THE CONSUMMATION OF THE
TRANSACTIONS OR ANY OTHER TRANSACTIONS CONTEMPLATED HEREBY, AND (II) ANY ACTUAL OR PROSPECTIVE
CLAIM, LITIGATION, INVESTIGATION OR PROCEEDING RELATING TO ANY OF THE FOREGOING, WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY AND REGARDLESS OF WHETHER ANY INDEMNITEE IS A PARTY THERETO;
PROVIDED THAT SUCH INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE, BE AVAILABLE TO THE EXTENT
THAT SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES OR RELATED EXPENSES RESULTED FROM THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE.
SECTION 5.08. Voting Rights. Debtor shall retain all voting rights to the Collateral
unless an Event of Default exists, at which time such voting rights shall transfer to or be
exercised as directed by Secured Party, at its sole discretion; provided, however,
that no voting or management rights shall be exercised, vote case, consent, waiver, or ratification
given, or action taken by Debtor which would be inconsistent with or violate any provision of this
Agreement or any other Credit Document.
Security Agreement — Page 17
ARTICLE VI
Miscellaneous
SECTION 6.01. Waiver of Subrogation. Until the Release Date, Debtor shall not assert,
enforce, or otherwise exercise (a) any right of subrogation to any of the rights or Liens of
Secured Party or any Lender or any Person acting for the benefit of Secured Party or any Lender
against any Subsidiary or any Collateral or any other security, or (b) any right of recourse,
reimbursement, contribution, indemnification, or similar right against any Subsidiary on all or any
part of the Secured Obligations, and Debtor hereby waives any and all of the foregoing rights and
the benefit of, and any right to participate in, any Collateral or other security given to Secured
Party, any Lender or any Person acting for the benefit of Secured Party or any Lender to secure
payment of the Secured Obligations. This Section 6.01 shall survive the termination of
this Agreement, and any satisfaction and discharge of Debtor by virtue of any payment, court order,
or law.
SECTION 6.02. Cumulative Rights. All rights of Secured Party and each Lender under
the Credit Documents are cumulative of each other and of every other right which Secured Party and
each Lender may otherwise have at law or in equity or under any other agreement. The exercise of
one or more rights shall not prejudice or impair the concurrent or subsequent exercise of other
rights.
SECTION 6.03. Amendments; Waivers. Any term, covenant, agreement, or condition of
this Agreement may be amended, and any right under this Agreement may be waived, if, but only if,
such amendment or waiver is in writing and is signed by Secured Party and, in the case of an
amendment, by Debtor. Unless otherwise specified in such waiver, a waiver of any right under this
Agreement shall be effective only in the specific instance and for the specific purpose for which
given. No election not to exercise, failure to exercise or delay in exercising any right, nor any
course of dealing or performance, shall operate as a waiver of any right of Secured Party or any
Lender under this Agreement, any other Credit Document or applicable law, nor shall any single or
partial exercise of any such right preclude any other or further exercise thereof or the exercise
of any other right of Secured Party or any Lender under this Agreement or any other Credit Document
or applicable law.
SECTION 6.04. Continuing Security Interest. This Agreement creates a continuing
security interest in the Collateral and shall (i) remain in full force and effect until the Release
Date, (ii) be binding upon Debtor, its permitted successors and assigns, and Debtor as a debtor in
possession and any trustee or administrator for Debtor or is property, and (iii) inure to the
benefit of, and be enforceable by, Secured Party and its successors, transferees and assigns. Upon
any such termination, all Collateral shall be released from the Liens created hereby, and this
Agreement and all obligations (other than those expressly stated to survive such termination) of
Secured Party, each Lender and Debtor hereunder shall terminate, all without delivery of any
instrument or performance of any act by any party, and all rights to the Collateral shall revert to
the granting parties and Secured Party will, at Debtor’s expense, execute and deliver to Debtor
such documents as Debtor shall reasonably request to evidence such termination and shall deliver to
Debtor any Collateral held by Secured Party hereunder. Debtor agrees that to the extent that
Secured Party or any Lender receives any payment or benefit and such payment or
benefit, or any part thereof, is subsequently invalidated, declared to be fraudulent or
preferential, set aside or is required to be repaid to a trustee, receiver, or any other party
under any proceeding under any bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors’ rights generally, common law or equitable cause, then to the extent of such
payment or benefit, the Secured Obligations or part thereof intended to be satisfied shall be
revived and continued in full force and effect as if such payment or benefit had not been made and,
further, any such repayment by Secured Party or any Lender, to the extent that Secured Party or any
Lender did not directly receive a corresponding cash payment, shall be added to and be additional
Secured Obligations payable upon demand by Secured Party or any Lender and secured hereby, and, if
the Lien and security interest hereof shall have been released, such Lien and security interest
shall be reinstated with the same effect and priority as on the date of execution hereof all as if
no release of such Lien or security interest had ever occurred.
Security Agreement — Page 18
SECTION 6.05. Governing Law; Jurisdiction; Consent to Service of Process. (a) This
Agreement shall be construed in accordance with and governed by the laws of the State of Texas.
(b) Debtor hereby irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the state and Federal courts in Texas and of the United States
District Court for the Northern District of Texas, Dallas Division, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this Agreement, or for
recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or proceeding may be heard and
determined in the State of Texas or, to the extent not prohibited by law, in such Federal court.
Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement shall affect any right that Secured Party or any
Lender may otherwise have to bring any action or proceeding relating to this Agreement against
Debtor or the Collateral in the courts of any jurisdiction.
(c) Debtor hereby irrevocably and unconditionally waives, to the fullest extent it may legally
and effectively do so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or any other Credit
Document in any court referred to in Section 6.05(b). Each of the parties hereto hereby
irrevocably waives, to the fullest extent not prohibited by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 6.11. Nothing in this Agreement or any other Credit
Document will affect the right of any party to this Agreement to serve process in any other manner
permitted by law.
SECTION 6.06. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT NOT PROHIBITED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER CREDIT
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTY HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Security Agreement — Page 19
SECTION 6.07. Secured Party’s Right to Use Agents. Secured Party may exercise its
rights under this Agreement through an agent or other designee.
SECTION 6.08. No Interference, Compensation or Expense. Secured Party may exercise
its rights under this Agreement (a) without resistance or interference by Debtor and (b) without
payment of any rent, license fee, or compensation of any kind to Debtor.
SECTION 6.09. Waivers of Rights Inhibiting Enforcement. Debtor waives (a) any claim
that, as to any part of the Collateral, a private sale, should Secured Party elect so to proceed,
is, in and of itself, not a commercially reasonable method of sale for such Collateral, (b) except
as otherwise provided in this Agreement, TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW,
NOTICE OR JUDICIAL HEARING IN CONNECTION WITH SECURED PARTY’S DISPOSITION OF ANY OF THE COLLATERAL
INCLUDING ANY AND ALL PRIOR NOTICE AND HEARING FOR ANY PREJUDGMENT REMEDY OR REMEDIES AND ANY SUCH
RIGHT THAT DEBTOR WOULD OTHERWISE HAVE UNDER ANY LAW AND ALL OTHER REQUIREMENTS AS TO THE TIME,
PLACE AND TERMS OF SALE OR OTHER REQUIREMENTS WITH RESPECT TO THE ENFORCEMENT OF SECURED PARTY’S OR
CREDITORS’ RIGHTS HEREUNDER and (c) all rights of redemption, appraisement or valuation.
SECTION 6.10. Obligations Not Affected. To the fullest extent not prohibited by
applicable law, the obligations of Debtor under this Agreement shall remain in full force and
effect without regard to, and shall not be impaired or affected by:
(a) any amendment, addition, or supplement to, or restatement of any Credit Document or any
instrument delivered in connection therewith or any assignment or transfer thereof;
(b) any exercise, non-exercise, or waiver by Secured Party or any Lender of any right, remedy,
power, or privilege under or in respect of, or any release of any guaranty, any collateral, or the
Collateral or any part thereof provided pursuant to, this Agreement, any other Credit Document;
(c) any waiver, consent, extension, indulgence, or other action or inaction in respect of this
Agreement, any other Credit Document or any assignment or transfer of any thereof;
(d) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition,
liquidation, or the like of any Borrower, Subsidiary or any other Person, whether or not Debtor
shall have notice or knowledge of any of the foregoing; or
Security Agreement — Page 20
(e) any other event which may give Debtor or any Subsidiary a defense to, or a discharge of,
any of its obligations under any Credit Document.
SECTION 6.11. Notices and Deliveries. All notices and other communications provided
for hereunder shall be effectuated in the manner provided for in Section 14.2 of the Credit
Agreement; provided, that notices to Debtor shall be addressed to Debtor’s address in
Schedule 2, Section (a), to the attention of President.
SECTION 6.12. Survival. All covenants, agreements, representations and warranties
made by Debtor herein and in the certificates or other instruments delivered in connection with or
pursuant to this Agreement shall be considered to have been relied upon by Secured Party and
Lenders and shall survive the execution and delivery of this Agreement, regardless of any
investigation made by Secured Party or any Lender or on its behalf and notwithstanding that Secured
Party or any Lender may have had notice or knowledge of any Potential Default or Event of Default
or incorrect representation or warranty at the time any credit is extended, and shall continue in
full force and effect as long as any Secured Obligation is outstanding and unpaid and so long as
the Commitments have not expired or terminated. The provisions of Sections 4.02(d),
5.02, 5.07, 6.01, 6.04, 6.05, 6.06 and 6.12
shall survive and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Secured Obligations, the expiration or
termination of the Commitments or the termination of this Agreement, any other Credit Document or
any provision hereof or thereof.
SECTION 6.13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, with the same effect as if the signatures thereto
were upon the same instrument. Executed counterpart signature pages delivered by facsimile or as
an attachment to electronic mail shall be deemed to be an original.
SECTION 6.14. ENTIRE AGREEMENT. THIS WRITTEN AGREEMENT, TOGETHER WITH THE OTHER
CREDIT DOCUMENTS, REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
[The Remainder Of This Page Is Intentionally Left Blank.]
Security Agreement — Page 21
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
delivered by their respective duly authorized officers as of the date first above written.
| Debtor: PMC COMMERCIAL TRUST |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Xxxxx X. Xxxxxx | ||||
| Executive Vice President and Chief Financial Officer |
||||
| Secured Party: JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Administrative Agent |
||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Xxxxxx Xxxxx | ||||
| Senior Vice President | ||||
