(I)
WILL CONSTITUTE A VALID AND ENFORCEABLE SECURITY INTEREST UNDER THE UNIFORM
COMMERCIAL CODE OF THE STATE (X) IN WHICH THE COLLATERAL IS LOCATED AND (Y) BY
WHICH ANY SECURITY DOCUMENT IS GOVERNED (AS APPLICABLE, THE "UCC"), (II) WILL BE
ENTITLED TO ALL OF THE RIGHTS, BENEFITS AND PRIORITIES PROVIDED BY THE UCC, AND
(III) WHEN SUCH SECURITY DOCUMENTS OR FINANCING STATEMENTS WITH RESPECT THERETO
ARE FILED AND RECORDED AS REQUIRED BY THE UCC, WILL BE SUPERIOR AND PRIOR TO THE
RIGHTS OF ALL THIRD PERSONS NOW EXISTING OR HEREAFTER ARISING WHETHER BY WAY OF
MORTGAGE, PLEDGE, LIEN, SECURITY INTEREST, ENCUMBRANCE OR OTHERWISE, EXCEPT FOR
PERMITTED LIENS, AND WILL PROVIDE AGENT AND LENDERS THE REQUISITE PRIORITY.
ALL
SUCH ACTION AS IS NECESSARY IN LAW HAS BEEN TAKEN, OR PRIOR TO THE EFFECTIVE
DATE WILL HAVE BEEN TAKEN, TO ESTABLISH AND PERFECT THE SECURITY INTEREST OF
AGENT AND LENDERS IN THE COLLATERAL AND TO ENTITLE LENDERS OR AGENT ON BEHALF OF
LENDERS TO EXERCISE THE RIGHTS AND REMEDIES PROVIDED IN EACH OF THE SECURITY
DOCUMENTS AND THE UCC, AS APPLICABLE, AND NO FILING, RECORDING, REGISTRATION OR
GIVING OF NOTICE OR OTHER ACTION IS REQUIRED IN CONNECTION THEREWITH EXCEPT SUCH
AS HAS BEEN MADE OR GIVEN OR WILL HAVE BEEN MADE OR GIVEN PRIOR TO SUCH DATES.
ALL FILING AND OTHER FEES AND ALL RECORDING OR OTHER TAX PAYABLE WITH RESPECT TO
THE RECORDING OF ANY OF THE SECURITY DOCUMENTS AND UCC FINANCING STATEMENTS HAVE
BEEN PAID OR PROVIDED FOR.
(B)
IN FURTHERANCE (AND NOT IN LIMITATION) OF SECTION 10.30(A), AFTER
GIVING EFFECT TO THE PLEDGE AGREEMENTS AND SECURITY AGREEMENTS LISTED ON
SCHEDULE 10.30(B), EACH BORROWER AND EACH PRIMARY OBLIGOR WILL HAVE GRANTED
AGENT A LIEN OF THE REQUISITE PRIORITY ON
54
(X) EACH PLEDGED NOTE AND ON EACH OTHER NOTE, INSTRUMENT OR OTHER EVIDENCE OF
INDEBTEDNESS, OTHER THAN ANY EXCLUDED NOTE, IN WHICH IT HAS ANY RIGHT, TITLE OR
INTEREST; AND (Y) EACH EQUITY INTEREST, OTHER THAN EQUITY INTERESTS IN EXCLUDED
ENTITIES, IN WHICH IT HAS ANY RIGHT, TITLE OR INTEREST, INCLUDING, WITHOUT
LIMITATION, EACH EQUITY INTEREST ISSUED TO IT BY ANY PORTFOLIO ENTITY ACQUIRING
ANY ASSET POOL.
10.31
OTHER LOAN DOCUMENTS.
ALL REPRESENTATIONS AND WARRANTIES CONTAINED
IN THE OTHER LOAN DOCUMENTS ARE TRUE AND CORRECT.
10.32
EXCLUSION OF HARBOR DEBTORS.
NO REPRESENTATION, WARRANTY OR
COVENANT SET FORTH IN THIS SECTION 10 SHALL BE DEEMED TO BE A REPRESENTATION,
WARRANTY OR COVENANT WITH RESPECT TO OR BY A HARBOR DEBTOR.
10.33
CRESTONE PORTFOLIO ENTITIES.
FC Commercial has organized an eighty per cent (80%) owned subsidiary, FirstCity
Denver Investment Corp., in connection with Crestone Partners, LLC, which owns
the remaining twenty per cent (20%) ownership interest, for the purpose of
investing in (a) distressed debt, (b) special situation mezzanine and bridge
loan originations, (c) leveraged buyouts and (d) other special investment
opportunities to be determined by FC Commercial and Crestone Partners, LLC.
FirstCity Denver Investment Corp. has a wholly owned subsidiary, FirstCity
Crestone, LLC, which will service Assets owned by Subsidiaries