EXECUTED COPY
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SECURITY AND COLLATERAL AGENT AGREEMENT
among
FIRSTCITY AUTO RECEIVABLES L.L.C.
(as Borrower)
CONTITRADE SERVICES L.L.C.
(as Lender)
and
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
(as Collateral Agent)
-------------------------
Dated as of April 30, 1998
-------------------------
TABLE OF CONTENTS
Page
SECTION 1. DEFINED TERMS................................................1
SECTION 2. SECURITY INTERESTS...........................................2
SECTION 3. CERTAIN RIGHTS OF LENDER WITH RESPECT TO COLLATERAL..........3
SECTION 4. REMEDIES UPON THE OCCURRENCE OF AN EVENT OF DEFAULT..........4
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS....................5
SECTION 6. [RESERVED]...................................................6
SECTION 7. THE COLLATERAL AGENT.........................................6
7.01. APPOINTMENT..................................................6
7.02. EXCULPATORY PROVISIONS.......................................7
7.03. RELIANCE BY COLLATERAL AGENT.................................7
7.04. NOTICE OF DEFAULT............................................7
7.05. NON-RELIANCE ON COLLATERAL AGENT.............................8
7.06. SUCCESSOR COLLATERAL AGENT...................................8
7.07. DELIVERY OF COLLATERAL AND PERMITTED INVESTMENTS.............9
7.08. DUTIES AND COVENANTS OF COLLATERAL AGENT.....................9
SECTION 8. AMENDMENTS AND WAIVERS......................................10
SECTION 9. NOTICES.....................................................11
SECTION 10. LIMITATION ON COLLATERAL AGENT'S DUTY IN RESPECT
OF COLLATERAL...............................................12
SECTION 11. SEVERABILITY................................................12
SECTION 12. NO WAIVER; CUMULATIVE REMEDIES..............................12
SECTION 13. PAYMENT OF EXPENSES AND TAXES...............................12
SECTION 14. SUCCESSORS AND ASSIGNS; GOVERNING LAW; WAIVERS..............14
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SECTION 15. ENFORCEMENT RIGHTS OF LENDER................................15
SECTION 16. BANKRUPTCY PETITION AGAINST THE BORROWER....................15
SECTION 17. MISAPPLICATION OF FUNDS.....................................15
SECTION 18. COUNTERPART SIGNATURES......................................15
SECTION 19. THIRD PARTY BENEFICIARY.....................................16
SECTION 20. STATUS OF COLLATERAL AGENT..................................16
SECTION 21. ACTS OF LENDER..............................................16
EXHIBIT A -- Form of Trust Receipt
EXHIBIT B -- Form of Power of Attorney
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SECURITY AND COLLATERAL AGENT AGREEMENT
SECURITY AND COLLATERAL AGENT AGREEMENT, dated as of April 30,
1998, made by and among FIRSTCITY AUTO RECEIVABLES L.L.C., a Delaware limited
liability company (the "Borrower"), CONTITRADE SERVICES, L.L.C., a Delaware
Limited Liability Company (the "Lender") and CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION ("CBT"), as collateral agent (in such capacity, the "Collateral
Agent").
W I T N E S S E T H
WHEREAS, the Borrower has entered into a Warehouse Credit
Agreement dated as of April 30, 1998 (as may from time to time, be amended,
supplemented, or modified, the "Credit Agreement" with the Lender, the Borrower,
FirstCity Consumer Lending Corporation ("FC Consumer") and FirstCity Financial
Corporation ("FirstCity Financial"), pursuant to which the Borrower will take
out loans (the "Loans") from time to time;
WHEREAS, the Borrower intends to purchase Contracts from
FirstCity Funding Corporation, FirstCity Consumer Finance Corporation, and
N.A.F. Auto Loan Trust;
WHEREAS, it is a condition to the obligations of the Lender to
make the Facility available to the Borrower that this Security and Collateral
Agent Agreement be executed and delivered.
NOW, THEREFORE, to induce the Lender to make the Facility
available to the Borrower the parties hereto hereby agree as follows:
SECTION 1. DEFINED TERMS.
(a) The terms "inventory", "goods", "accounts", "contract
rights", "chattel paper", "general intangibles", and "documents" have the
respective meanings ascribed in the UCC.
(b) Capitalized terms used herein undefined shall, unless
otherwise defined herein, have the respective meanings ascribed in the Credit
Agreement, including the "Definitions List" attached as Exhibit A thereto; and
the following terms shall have the following meanings: "Assignment" shall mean
an assignment executed pursuant to the Master Purchase Agreement.
"Collateral" shall have the meaning assigned to such term in
Section 2 hereof.
"Collateral Agent Fee" shall have the meaning set forth in a
separate letter agreement between Borrower and the Collateral Agent.
"Contract Acquisition Disbursement Request" shall mean the
disbursement request made from time to time pursuant to Section 2.03(a)(i) of
the Paying Agent Agreement.
"Master Purchase Agreement" shall mean the Master Purchase
Agreement dated as of April 30, 1998 by and among the Borrower, FirstCity
Consumer Finance Corporation, FirstCity Funding Corporation, N.A.F. Auto Loan
Trust, and National Auto Funding Corporation.
"Proceeds" shall have the meaning assigned such term under the
UCC of the State of New York, and of each other jurisdiction whose law governs
the grant or perfection of the Collateral Agent's interest in the particular
proceeds of the Collateral and shall also include (to the extent not already
included): (i) any and all proceeds of any insurance, indemnity, warranty,
guaranty or letter of credit payable to the Borrower from time to time with
respect to any of the Collateral, (ii) any and all payments (in any form
whatsoever) made or rights to amounts payable to the Borrower from time to time
in connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Collateral by any governmental body,
authority, bureau or agency (or any person acting under color of governmental
authority), (iii) any and all other amounts, products, rents or profits from
time to time paid or payable under or in connection with the Collateral and (iv)
all additions to or substitutions or replacements for any of the Collateral.
"Responsible Officer" shall mean, when used with respect to
the Collateral Agent, any officer within the corporate trust department in
Dallas, Texas (or any successor thereof) including any vice president, assistant
vice president, or any officer or assistant officer of the Collateral Agent
customarily performing functions similar to those performed by any of the
above-designated officers.
SECTION 2. SECURITY INTERESTS.
(a) As security for the prompt, complete and unconditional
payment and performance of all Obligations of the Borrower, the Borrower hereby
pledges, assigns, transfers and delivers (except that certificates of title are
not being delivered to the Collateral Agent and the stated lienholder thereon
shall be any of FirstCity Consumer Finance, FirstCity Funding or either of the
N.A.F. Entities) to the Collateral Agent for the benefit of the Lender, and
grants to the Collateral Agent for the benefit of the Lender, a continuing first
lien on, and first and prior security interest in, all of the Borrower's assets
and properties, real, personal and mixed, tangible and intangible, of any kind
or description, whether now owned or at any time hereafter acquired, whether now
existing or hereafter acquired, and wherever located (collectively, the
"Collateral") including, without limitation all estate, right, title and
interest in, to and under:
(i) all inventory, goods, accounts, contract rights, chattel
paper, instruments, general intangibles and documents;
(ii) each Contract, including without limitation, all rights
to payments thereunder, purchased by or otherwise conveyed to or established by
the Borrower;
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(iii) each Vehicle and all other property, now or hereafter
acquired, securing or evidenced by, each Contract including, without limitation,
the certificate of title relating to each Vehicle, any insurance proceeds with
respect to any Vehicle or Contract, the proceeds of any repossession and
liquidation of a Vehicle, rights under judgments with respect to defaulted
obligors, right to deficiency judgments with respect to defaulted obligors and
rights under any service contracts with respect to any Vehicle;
(iv) all bank and trust accounts (including, without
limitation, the Lockbox Account and the Collection Account) and all moneys,
checks, instruments, documents, securities, investments, deposits and other
credits (whether or not permitted by the Facility Agreements) credited to the
Collection Account, or otherwise held by the Collateral Agent;
(v) the certificates of title relating to the Contracts,
credit applications, payment history records, and other origination and
servicing records relating to the Contracts;
(vi) all securities and other investments held at any time
by the Borrower including any and all subordinate certificates (including any
"interest only" certificates and the rights to any other distributions from any
securitization) received by the Borrower or any Affiliate of the Borrower from
any securitization, together with appropriate bond powers, duly executed (the
"Subordinate Certificates");
(vii) each Facility Agreement; and
(viii) all Proceeds of any of the foregoing.
(b) All rights of the Collateral Agent and the Lender and all
liens and security interests granted hereunder, shall be absolute, unconditional
and irrevocable unless and until released pursuant to the Facility Agreements,
irrespective of any condition or circumstance whatsoever.
(c) The grant of the security interest to the Collateral Agent
pursuant to this Section 2 shall not: (i) relieve the Borrower from the
performance of any term, covenant, condition or agreement on the Borrower's part
to be performed or observed under or in connection with the Collateral, (ii)
impose any obligation on the Collateral Agent or the Lender to perform or
observe any such term, covenant, condition or agreement on the Borrower's part
to be so performed or observed, or (iii) impose any liability on the Collateral
Agent or the Lender for any act or omission on the part of the Borrower, or any
Person acting as agent for or on behalf of the Borrower, relative to or for any
breach of any representation or warranty on the part of the Borrower in
connection with the Collateral.
SECTION 3. CERTAIN RIGHTS OF LENDER WITH RESPECT TO COLLATERAL.
Upon the occurrence and during the continuance of an Event of
Default, the Borrower hereby irrevocably authorizes the Collateral Agent to
execute and deliver, as the attorney-in-fact of the Borrower, any consent,
waiver or amendment which, under the terms of any Facility Agreement, is or may
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be executed and delivered by the Borrower with respect to the Collateral,
subject to the provisions of the Facility Agreements; provided, however, that
the Collateral Agent shall have no duty or obligation to execute and deliver any
such consent, waiver or amendment unless directed in writing to take the actions
specified therein by the Lender; and provided, further, that the Collateral
Agent shall not be required to take any action which the Collateral Agent
reasonably believes may be contrary to applicable law or which would expose the
Collateral Agent to financial liability if the Collateral Agent has reasonable
grounds to believe that repayment of such financial liability is not reasonably
assured to it. The Borrower hereby agrees to remit to the Collateral Agent for
deposit in accordance with this Agreement any and all Proceeds of any Collateral
received by the Borrower (other than money paid to the Borrower by the
Collateral Agent in accordance with the Facility Agreements).
SECTION 4. REMEDIES UPON THE OCCURRENCE OF AN EVENT OF DEFAULT.
(a) (i) If at any time an Event of Default shall have occurred
and be continuing, the Collateral Agent shall, if directed in writing by the
Lender, without demand of performance or other demand, advertisement or notice
of any kind (except for any notice of the time and place of public or private
sale required by law) to or upon the Borrower or any other Person (all of which
demands, advertisements and/or notices are hereby expressly waived), and in its
own name or in the name of the Lender, forthwith demand, collect, receive, ▇▇▇
for, appropriate and realize upon the Collateral, or any part thereof, and/or
may forthwith sell, assign, grant an option or options to purchase, contract to
sell or otherwise dispose of and deliver said Collateral, or any part thereof,
in one or more parcels at public or private sale or sales, at any location or
locations at the option of the Collateral Agent acting upon any instructions
received from the Lender, all upon such terms and conditions and at such prices
as the Lender may deem advisable, for cash or on credit or for future delivery
without assumption of any credit risk, with the right of the Collateral Agent or
the Lender upon any such public sale or sales to purchase the whole or any part
of said Collateral so sold, free of any right of redemption in the Borrower,
which right is hereby expressly waived and released. At the instruction of the
Lender, the Collateral Agent may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for the sale, and such sale may be made
at any time or place to which the same may be so adjourned.
(ii) If at any time an Event of Default shall have
occurred and be continuing and the Lender has given written notice to
the Collateral Agent as to the disposition of the Collateral or as to
the exercise of remedies against the Collateral, the Collateral Agent
hereby agrees to follow such direction; provided, however, no
provision of this Agreement shall require the Collateral Agent to
take any action which it or its counsel deems to be unlawful nor
shall the Collateral Agent be obligated to expend or risk its own
funds or otherwise incur any financial liability in the performance
of any rights, powers or duties hereunder, if the Collateral Agent
shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not
reasonably assured to it. Until all Obligations have been repaid and
satisfied in full, the Collateral Agent shall be obligated, subject
to the foregoing proviso, to take direction only from the Lender as
to, upon the occurrence and during the continuance of an Event of
Default, the disposition of the Collateral, or the exercise of
remedies against the Collateral.
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(iii) If an Event of Default shall have occurred and be
continuing, then the Collateral Agent shall, if directed by the
Lender, at any time thereafter, without demand of performance or
other demand, succeed to the Borrower's rights and privileges with
respect to each Facility Agreement.
(iv) If an Event of Default shall have occurred and be
continuing, the Collateral Agent shall, if directed by the Lender, at
the expense of the Borrower or the Lender, cause the Subordinate
Certificates to be re-registered in the name of the Lender (which
Subordinate Certificates will in turn be re-registered to the
appropriate FirstCity Entity, at its expense, when and if all
Obligations have been repaid and satisfied in full).
(b) If any notification of a proposed disposition of the
Collateral is required by law, such notification shall be deemed reasonably and
properly given if made in any manner provided in Section 9 hereof at least ten
days before such disposition.
(c) In addition to the rights, powers and remedies granted to
it in this Security and Collateral Agent Agreement and in any other instrument
or agreement securing, evidencing or relating to the Loans, the Collateral Agent
shall have all of the rights, powers and remedies now or hereafter permitted in
law or equity, including, without limitation, those of a secured party under the
UCC of the State of New York and any other applicable jurisdiction.
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS.
The Borrower represents, warrants and agrees that:
(a) No security agreement, financing statement, equivalent
security or lien instrument or continuation statement listing the Borrower as
debtor covering all or any part of the Collateral is on file or of record in any
jurisdiction, except such as may have been filed, for the benefit of the Lender
recorded or made by the Borrower in favor of the Collateral Agent pursuant to
this Security and Collateral Agent Agreement or the Credit Agreement.
(b) This Security and Collateral Agent Agreement is effective
to create a valid and continuing Lien on the Collateral in favor of the
Collateral Agent for the benefit of the Lender, which Lien is prior to all other
Liens, and is enforceable as such as against creditors of and purchasers from
the Borrower. All action necessary or desirable to protect and perfect such
security interest has been duly taken.
(c) The Borrower's chief executive office is at Box 8216, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇. The Borrower will not change its name
and will not change its principal place of business or chief executive office
unless the Borrower shall have given the Collateral Agent at least thirty (30)
days prior written notice thereof and shall have taken all action necessary to
assure continuous perfection of the security interest held by the Collateral
Agent in the Collateral as evidenced by an opinion of counsel addressed to the
Collateral Agent and the Lender to the effect that the lien and security
interest created by this Security and Collateral Agent Agreement with respect to
such Collateral will continue to be maintained, and that the priority thereof
will not be affected, after giving effect to such action or actions.
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(d) At any time and from time to time, and at the sole expense
of the Borrower, the Borrower will promptly and duly execute and deliver any and
all such further instruments and documents and take such further action as the
Lender may reasonably deem desirable in obtaining the full benefits of this
Security and Collateral Agent Agreement and of the rights and powers herein
granted, including, without limitation, the filing of any financing or
continuation statements under the Uniform Commercial Code in effect in any
jurisdiction with respect to the liens and security interests granted hereby.
The Borrower also hereby authorizes the Collateral Agent to file any such
financing or continuation statement that requires the signature of the Borrower
to the extent permitted by applicable law; provided, however, that such
authorization shall not be deemed to create a duty in the Collateral Agent to
monitor the compliance of the Borrower with the foregoing covenants and provided
further that the duty of the Collateral Agent to execute any instrument pursuant
to the authorizations of Section 5(d) or (f) shall arise only if a Responsible
Officer of the Collateral Agent has actual knowledge, or has received written
notice, of the failure of the Borrower to comply with the foregoing covenants.
If any amount payable under or in connection with any of the Collateral shall be
or become evidenced by any promissory note or other instrument, or any chattel
paper, the Borrower shall, upon request of the Lender, duly endorse such note,
instrument or chattel paper to the order of the Collateral Agent and deliver
such note, instrument or chattel paper to the Collateral Agent promptly, and
shall take such other actions and execute such other documents as shall be
requested by the Lender to perfect the Collateral Agent's interest in such note,
instrument or chattel paper.
(e) The Borrower will warrant and defend the Collateral
Agent's right, title and interest in and to the Collateral, for the benefit of
the Lender against the claims and demands of all Persons whomsoever.
(f) All authorizations in this Security and Collateral Agent
Agreement for the Collateral Agent to endorse checks, instruments and securities
and to execute, deliver and file financing statements, continuation statements,
security agreements and other instruments with respect to the Collateral are
powers coupled with an interest and are irrevocable so long as any Loans are
outstanding.
(g) The Borrower shall deliver to the Collateral Agent all
Contract Acquisition Disbursement Requests by 2:00 p.m., Dallas time, on the
applicable date of delivery.
SECTION 6. [Reserved]
SECTION 7. THE COLLATERAL AGENT.
7.01. Appointment.
By accepting the benefits of the security interest granted
herein, the Lender hereby designates and appoints Chase Bank of Texas, National
Association as the Collateral Agent of the Lender under this Security and
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Collateral Agent Agreement, and the Lender authorizes Chase Bank of Texas,
National Association as the Collateral Agent for the Lender, to take such action
on its behalf under the provisions of this Security and Collateral Agent
Agreement and to exercise such powers and perform such duties as are expressly
delegated to the Collateral Agent by the terms of this Security and Collateral
Agent Agreement together with such other powers as are reasonably incidental
thereto but in each instance solely at the written instruction of the Lender.
Notwithstanding any provision to the contrary elsewhere in this Security and
Collateral Agent Agreement, the Collateral Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with the Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Security and Collateral Agent Agreement or otherwise exist against the
Collateral Agent. Chase Bank of Texas, National Association hereby accepts its
appointment as Collateral Agent, subject to, and in reliance upon, the provision
of this Section 7.01.
7.02. Exculpatory Provisions.
Neither the Collateral Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates shall be (i)
liable for any action lawfully taken or omitted to be taken by it or such Person
under or in connection with this Security and Collateral Agent Agreement (except
for its or such Person's own gross negligence or willful misconduct), or (ii)
responsible in any manner to the Lender for any recitals, statements,
representations or warranties made by the Borrower or any officer thereof
contained herein or in any other Facility Agreement, or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Collateral Agent under or in connection with, this Agreement, any other
Facility Agreement, or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency (except with respect to the Collateral Agent) of
this Agreement, any other Facility Agreement, or the Collateral or for any
failure of the Borrower to perform its obligations hereunder or under any other
Facility Agreement. The Collateral Agent shall not be under any obligation to
the Lender to ascertain or to inquire as to the observance or performance of any
of the agreements contained in, or conditions of, any of the Facility
Agreements, or to inspect the properties, books or records of the Borrower.
7.03. Reliance by Collateral Agent.
The Collateral Agent shall be entitled to rely, and shall be
fully protected in relying, upon any Loan, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Borrower), independent accountants and other experts
selected by the Collateral Agent. The Collateral Agent shall be fully justified
in failing or refusing to take any action under this Security and Collateral
Agent Agreement unless it shall first receive such written advice or concurrence
as it deems appropriate or it shall first be indemnified to its satisfaction
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Collateral Agent may from
time to time consult with legal counsel, independent accountants or other
experts of its own selection in the event of any disagreement, controversy,
question or doubt as to the construction of any provision of this Agreement or
any of its duties hereunder, and the Collateral Agent shall be fully protected
in acting in good faith in reliance upon the advice or opinion of any such
counsel or other expert.
7.04. Notice of Default.
The Collateral Agent shall not be deemed to have knowledge or
notice of the occurrence of any Event of Default under the Credit Agreement
unless a Responsible Officer has received written notice from the Lender or the
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Borrower referring to this Security and Collateral Agent Agreement and
describing such Event of Default or unless a Responsible Officer otherwise has
actual knowledge of such Event of Default.
7.05. Non-Reliance on Collateral Agent.
Neither the Collateral Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates has made any
representations or warranties to the Lender, and no act by the Collateral Agent
hereafter taken, including any review of the affairs of the Borrower, shall be
deemed to constitute any representation or warranty by the Collateral Agent to
the Lender. The Lender represents (or will be deemed to have represented at such
time as such party becomes a Lender hereunder) to the Collateral Agent that it
has, independently and without reliance upon the Collateral Agent, and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Borrower and made its
own decision to extend credit to the Borrower. The Lender will, independently
and without reliance upon the Collateral Agent, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Security and Collateral Agent Agreement, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrower. Except for
notices, reports and other documents expressly required to be furnished by the
Collateral Agent hereunder, the Collateral Agent shall have no duty or
responsibility to provide the Lender with any credit or other information
concerning the business, operations, property, financial and other condition or
creditworthiness of the Borrower which may come into the possession of the
Collateral Agent or any of its officers, directors, employees, agencies,
attorneys-in-fact or affiliates.
7.06. Successor Collateral Agent.
The Collateral Agent may resign as collateral agent upon 60
days' notice to the Borrower, FC Consumer and the Lender. The Collateral Agent
may be removed at any time by the Lender. No such resignation or removal shall
be effective unless and until a successor collateral agent named by the Borrower
and approved by the Lender has accepted appointment as such pursuant to this
Agreement and in the case of a removal, any and all amounts then due to the
Collateral Agent hereunder have been paid in full. Such successor collateral
agent shall succeed to the rights, powers and duties of the Collateral Agent,
and the term "Collateral Agent" shall mean such successor collateral agent
effective upon its appointment, and the former Collateral Agent's rights, powers
and duties as Collateral Agent shall be terminated, without any other or further
act or deed on the part of such former Collateral Agent. Such successor
collateral agent shall be entitled to amend any UCC financing statements and any
other filings, recordation and declarations it deems advisable or necessary in
connection with such termination and cancellation. After any retiring Collateral
Agent's resignation or removal hereunder as Collateral Agent, the provisions of
this Section 7.06 and Section 13 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Collateral Agent under this
Security and Collateral Agent Agreement . Notwithstanding the foregoing, if no
successor collateral agent shall be appointed as aforesaid, or if appointed,
such successor shall not have accepted its appointment within thirty (30) days
after resignation of the Collateral Agent, the Collateral Agent may petition a
court of competent jurisdiction to make such appointment.
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7.07. Delivery of Collateral and Permitted Investments.
All certificates representing or evidencing the Collateral and
Permitted Investments from time to time which are delivered to and held by or on
behalf of the Collateral Agent pursuant hereto shall, in the case of the
Collateral, be in suitable form for transfer by delivery, or shall be
accompanied by duly executed instruments of transfer or assignment in blank. The
Lender hereby appoints CBT as its agent for the purpose of holding the
Collateral and Permitted Investments which are delivered to it. The Collateral
Agent shall be the agent solely of the Lender and shall not be the agent of the
Borrower. The Collateral Agent shall not release possession of any Contract, any
Permitted Investments or the security interest in any Vehicle or Permitted
Investment except as permitted in the next sentence, or upon the written
instruction of the Lender. The Collateral Agent shall not release possession of
any Contracts to the Servicer or any documents in the related Contract Files
thereto except (i) upon receipt of a trust receipt substantially in the form
attached hereto as Exhibit A obligating the Servicer to hold same in trust for
the benefit of the Lender and obligating the Servicer to return same when the
need therefor no longer exists unless such Trust Receipt indicates that the
related Contract has been paid in full.
7.08. Duties and Covenants of Collateral Agent.
(a) The Collateral Agent undertakes to perform the duties as
are set forth in this Agreement, including, without limitation:
(i) reviewing each Contract delivered to it by the
Borrower against the Contract List attached to the related Contract
Acquisition Disbursement Request, ascertaining whether the
information listed in items (i), (ii), (iii), (viii) and (xi) of the
Contract List is accurate with respect to such Contract; with respect
to any Contract Acquisition Disbursement Request, on the third
Business Day of the calendar week following the calendar week in
which such Contract Acquisition Disbursement Request and the related
Contract are received by the Collateral Agent, provide a
certification to the Borrower and the Lender (the "Collateral Agent's
Certification") listing (x) the Contracts so reviewed by the
Collateral Agent and in its possession and (y) whether there were any
exceptions to the Collateral Agent's review of such items (i), (ii),
(iii), (viii) and (xi) on the Contract List;
(ii) maintaining possession of such Contracts on behalf of
the Lender, and releasing such Contracts from the Collateral Agent's
possession only upon the Lender's written instruction or pursuant to
Section 7.07 hereof;
(iii) upon request, providing information reasonably
within its possession and within reasonable time constraints
regarding the Collateral to FC Consumer, the Servicer and the Lender;
(iv) acting as Collateral Agent of all Contract Files
related to the Collateral which are delivered to it;
(v) upon request, and no later than noon New York time on
any Borrowing Date, providing written confirmation to the Paying
Agent and the Lender of the Borrowing Base, and whether a Borrowing
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Base Deficiency exists; provided, however, that the Collateral Agent
shall have received all reports from the Servicer with the
information relating to such confirmation by 10 AM New York time, on
the date of such confirmation;
(vi) cooperating with the Servicer, as requested by the
Servicer at the expense of the Borrower, in enforcing any Contracts
or Insurance Policies;
(vii) furnishing the Servicer with any limited powers of
attorney and other documents which the Servicer may reasonably
request in writing and which the Servicer deems necessary or
appropriate and take any other steps which the Servicer may deem
necessary or appropriate to enable the Servicer to carry out its
servicing and administrative duties under the Servicing Agreement;
(viii) providing to the Lender and the Borrower on the
third Business Day of each calendar week, a manifest of Contracts
held by the Collateral Agent as of the close of business on the last
Business Day of the previous calendar week; and
(ix) upon a Responsible Officer obtaining actual knowledge
of the occurrence of an Event of Servicing Termination or an Event of
Default, promptly give notice to the Lender and the Borrower of such
occurrence.
(b) The Collateral Agent covenants and agrees that it will not
release any Lien created hereby on any of the Collateral, release possession of
any of the Collateral held by it, or affirmatively create any Lien on the
Collateral adverse to the Lien created hereby, except, in all cases, as
expressly permitted hereby or as directed by the Lender. The Collateral Agent
shall give the Lender prompt written notice of any Liens on any of the
Collateral adverse to the Lien created hereby, of which a Responsible Officer
obtains actual knowledge.
(c) The Lender hereby directs the Collateral Agent to, and the
Collateral Agent shall, on the Closing Date, execute and deliver to the Servicer
the power of attorney in the form set forth as Exhibit B hereto. The Borrower,
irrespective of any other indemnity, agrees to pay, indemnify and hold the
Collateral Agent and each of its officers and agents harmless from and against
all liabilities, obligations, losses, damages, fines, actions, judgments, costs,
expenses or disbursements (including reasonable fees and disbursements of the
Collateral Agent's and its designated agents' legal advisers) of any kind or
nature resulting from or relating to the power of attorney delivered pursuant to
this Section 7.08(c). Such power of attorney shall be a limited revocable power
of attorney which shall be deemed revoked upon the occurrence of an Event of
Default and shall be revocable at any time by the Collateral Agent upon notice
to the Borrower and the Lender.
SECTION 8. AMENDMENTS AND WAIVERS.
The parties hereto may, from time to time, enter into written
amendments, supplements or modifications hereto for the purpose of adding any
provision to this Security and Collateral Agent Agreement or changing in any
manner the rights of the Collateral Agent or the Borrower hereunder.
10
The Collateral Agent may, but shall not be obligated to, enter
into any such supplement, amendment or modification that affects the Collateral
Agent's own rights, duties or immunities under this Security and Collateral
Agent Agreement or otherwise.
The parties hereto agree not to execute any supplement,
amendment or modification to any Facility Agreement to which the Collateral
Agent is not a party, without the prior written consent of the Collateral Agent,
if the effect of such supplement. amendment or modification would be to affect
the Collateral Agent's rights, duties, or immunities thereunder or under this
Security and Collateral Agent Agreement .
SECTION 9. NOTICES.
Unless otherwise expressly provided herein, all notices,
requests and demands to or upon the respective parties hereto to be effective
shall be in writing and, unless otherwise expressly provided herein, shall be
deemed to have been duly given or made when delivered by hand, or when deposited
in the mail, postage prepaid, or in the case of telegraphic notice, when
delivered to the telegraph company, or, in the case of facsimile notice, when
sent, confirmation received, addressed as follows, or to such other addresses as
may be hereafter notified by the respective parties hereto:
The Borrower:
FirstCity Auto Receivables L.L.C.
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
with a copy to:
FirstCity Consumer Finance Corporation
P.O. Box 8216
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
The Collateral Agent:
Chase Bank of Texas, National Association
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
(FirstCity Auto Receivables L.L.C.)
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
11
The Lender:
ContiTrade Services L.L.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
provided, that any notice to or upon the Borrower shall be deemed to have been
duly given or made as aforesaid when so given or made to the Borrower whether or
not any other party indicated above as the recipient of a copy thereof shall
have received a copy of each notice.
SECTION 10. LIMITATION ON COLLATERAL AGENT'S DUTY IN RESPECT OF
COLLATERAL.
Except as set forth herein and beyond the safe custody
thereof, the Collateral Agent shall not have any duty as to any Collateral in
its possession or control or the possession or control of any agent or nominee
of it or any income thereof or as to the preservation of rights against prior
parties or any other rights pertaining thereto.
SECTION 11. SEVERABILITY.
Any provision of this Security and Collateral Agent Agreement
which is prohibited or unenforceable in any jurisdiction shall as to such
jurisdiction be ineffective to the extent of such prohibition or
unenforceability without invalidation of the remaining provisions hereof and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 12. NO WAIVER; CUMULATIVE REMEDIES.
Neither the Collateral Agent nor the Lender shall by any act,
delay, omission or otherwise be deemed to have waived any of its or their rights
or remedies hereunder and no waiver shall be valid unless in writing, signed by
the Collateral Agent on behalf of the Lender, and then only to the extent
therein set forth. A waiver by the Collateral Agent of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or
remedy which the Collateral Agent or the Lender would otherwise have had on any
future occasion. No failure to exercise nor any delay in exercising on the part
of the Collateral Agent or the Lender any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, power or privilege hereunder preclude any other or future exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies hereunder provided are cumulative and may be exercised singly or
concurrently and are not exclusive of any rights and remedies provided by law.
SECTION 13. PAYMENT OF EXPENSES AND TAXES.
(a) The Borrower hereby agrees to pay to the Collateral Agent
a fee for its services hereunder equal to the Collateral Agent Fee. The Borrower
and FC Consumer, jointly and severally, each agrees to pay, indemnify, and to
12
hold the Collateral Agent harmless from, any and all recording and filing fees
and any and all liabilities with respect to, or resulting from any delay in
paying, stamp and other similar taxes, if any, which may be payable or
determined to be payable in connection the execution and delivery of, or
consummation of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Security and Collateral Agent Agreement , and any such other documents, and
to pay, indemnify, and hold the Collateral Agent and its officers, directors,
shareholders, employees, agents and representatives harmless from and against
any and all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Security and Collateral Agent Agreement and any such
other documents (including but not limited to those incurred by any negligent
act or negligent omission to act of the Collateral Agent) (all the foregoing,
collectively, the "indemnified liabilities"); provided, that the Borrower and FC
Consumer shall not be liable to the Collateral Agent for any losses incurred by
the Collateral Agent as a result of the fraudulent actions, misrepresentations,
gross negligence or willful misconduct of the Collateral Agent. The obligations
of the Borrower and FC Consumer under this Section 13 shall survive the
termination of this Security and Collateral Agent Agreement and the discharge of
the other obligations of the Borrower hereunder and also shall survive the
resignation or removal of the Collateral Agent hereunder.
(b) Promptly after receipt by the Collateral Agent of notice
of the commencement of any action, such Collateral Agent shall, if a claim in
respect thereof is to be made against the Borrower or FC Consumer under this
Section 13, notify the Borrower or FC Consumer in writing of the commencement
thereof; but the omission so to notify the Borrower will not relieve it from any
liability which it may have to the Collateral Agent except to the extent the
Borrower is prejudiced thereby. In case any action is brought against the
Collateral Agent, and it notifies the Borrower of the commencement thereof, the
Borrower will be entitled to appoint counsel satisfactory to the Collateral
Agent and the Borrower (who shall not, except with the consent of the Collateral
Agent, be counsel to the Borrower or FC Consumer) to represent the Collateral
Agent in such action; provided, however, that, if the defendants in any action
include both the Collateral Agent and the Borrower and the Collateral Agent
shall have reasonably concluded that there may be legal defenses available to it
which are different from or additional to those available to the Borrower, the
Collateral Agent shall have the right to select separate counsel to defend such
action on behalf of it. Upon receipt of notice from the Borrower to the
Collateral Agent of its election so to appoint counsel to defend such action and
approval by the Collateral Agent of such counsel, the Borrower will not be
liable to the Collateral Agent under this Section 13 for any legal or other
expenses subsequently incurred by the Collateral Agent in connection with the
defense thereof unless (i) the Collateral Agent shall have employed separate
counsel in accordance with the proviso to the next preceding sentence, (ii) the
Borrower shall not have employed counsel satisfactory to the Collateral Agent to
represent the Collateral Agent within a reasonable time after notice of
commencement of the action or (iii) the Borrower has authorized the employment
of counsel for the Collateral Agent at the expense of the Borrower; and except
that, if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii).
(c) The obligations of the Borrower, FC Consumer and the
Collateral Agent under this Section 13 shall be in addition to any liability
13
which each of them may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls the Collateral Agent within the
meaning of the Securities Act; and, with respect to the obligation of the
Borrower to the Collateral Agent as indemnified party, shall extend, upon the
same terms and conditions, to each director of the Collateral Agent.
(d) The agreement, indemnities and other statements of the
parties hereto in or made pursuant to this Section 13 will remain in full force
and effect, regardless of any investigation, or statement as to the results
thereof, made by or on behalf of any other parties hereto or any of the
officers, directors or controlling persons referred to in this Section 13. The
provisions of this Section 13 shall survive the termination or cancellation of
this Agreement.
SECTION 14. SUCCESSORS AND ASSIGNS; GOVERNING LAW; WAIVERS
(a) This Security and Collateral Agent Agreement and all
obligations of the Borrower hereunder shall be binding upon the successors and
assigns of the Borrower, and shall, together with the rights and remedies of the
Collateral Agent hereunder, inure to the benefit of the Collateral Agent, the
Lender and their respective successors and assigns. THIS SECURITY AND COLLATERAL
AGENT AGREEMENT SHALL BE GOVERNED BY, AND BE CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICTS OF LAW PRINCIPLES THEREOF.
(B) EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY:
(i) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND THE OTHER
FACILITY AGREEMENTS TO WHICH IT IS A PARTY, OR FOR RECOGNITION AND
ENFORCEMENT OF ANY JUDGMENT OF THE COURTS OF THE STATE OF NEW YORK,
THE COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT
OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(ii) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE
BROUGHT IN SUCH COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY
SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN
INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(iii) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR
CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE
PREPAID, TO ITS ADDRESS SET FORTH IN SECTION 9 OR AT SUCH OTHER
ADDRESS OF WHICH ALL OF THE OTHER PARTIES HERETO SHALL HAVE BEEN
NOTIFIED PURSUANT THERETO;
14
(iv) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO
EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR
SHALL LIMIT THE RIGHT TO ▇▇▇ IN ANY OTHER JURISDICTION;
(v) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW,
ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR
PROCEEDING REFERRED TO IN THIS SUBSECTION ANY SPECIAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES; AND
(vi) EACH PARTY HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER FACILITY AGREEMENT
AND FOR ANY COUNTERCLAIM THEREIN. SECTION 1ENFORCEMENT RIGHTS OF
LENDER.
SECTION 15. ENFORCEMENT RIGHTS OF LENDER.
Unless the Collateral Agent shall fail to take action required
to be taken by it in the immediately succeeding sentence, no Lender shall have
any right directly to enforce the security interests granted by this Security
and Collateral Agent Agreement. No Lender shall have any right to require the
Collateral Agent to take or fail to take any action under this Security and
Collateral Agent Agreement, except as otherwise provided in the Credit Agreement
or in this Security and Collateral Agent Agreement.
SECTION 16. BANKRUPTCY PETITION AGAINST THE BORROWER.
The Collateral Agent hereby covenants and agrees that, prior
to the date which is one year and one day after the payment in full of all
outstanding Loans, it will not institute against, or join any other Person in
instituting against, the Borrower any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding or other similar proceeding under the laws
of the United States or any state of the United States.
SECTION 17. MISAPPLICATION OF FUNDS.
The Collateral Agent agrees that any funds incorrectly paid to
it by the Borrower shall be promptly returned to the Borrower upon receipt of
written notice from the Borrower that such funds were incorrectly paid to the
Collateral Agent prior to the Collateral Agent's transfer of such funds in
accordance with this Agreement. The Collateral Agent shall be completely
protected against any liability for returning such funds in reliance on such
written notice that funds were incorrectly paid and shall be entitled to full
indemnification therefor.
SECTION 18. COUNTERPART SIGNATURES.
This Agreement may be executed and delivered to you
simultaneously in two (2) or more counterparts, each of which shall be deemed an
original, but all such counterparts shall together constitute but one and the
same instrument.
15
SECTION 19. THIRD PARTY BENEFICIARY.
For all purposes of this Agreement, FC Consumer shall be a
third party beneficiary of the agreements and covenants herein contained and the
Servicer shall be a third party beneficiary of the provisions of this Agreement
which specify the amount and priority of payment of their respective fees.
SECTION 20. STATUS OF COLLATERAL AGENT.
The parties hereto acknowledge and agree that upon payment in
full of all amounts owing under the Credit Agreement and the release of the
Lender's security interest in the Collateral, the rights and obligations of the
Collateral Agent under this Agreement shall continue but shall be performed
solely at the direction of the Borrower.
SECTION 21. ACTS OF LENDER.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Agreement to be given or taken
by the Lender may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by the Lender in person or by agents duly
appointed in writing; and except as herein otherwise expressly provided such
action shall become effective when such instrument or instruments is or are
delivered to the Collateral Agent. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Agreement if made in the manner provided in this Section 21.
(b) The fact and date of the execution by any person of any
such instrument or writing may be proved in any manner that the Collateral Agent
deems sufficient.
(c) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Lender shall bind the Lender in respect
of anything done, omitted or suffered to be done by the Collateral Agent in
reliance thereon, whether or not notation of such action is made upon the
Promissory Note.
16
IN WITNESS WHEREOF, the parties hereto have caused this
Security Agreement to be executed by their duly authorized officers as of the
date first set forth above.
FIRSTCITY AUTO RECIEVABLES L.L.C.
By: /s/
-----------------------------------------
Name:
Title:
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as
Collateral Agent
By: /s/
-----------------------------------------
Name:
Title:
CONTITRADE SERVICES L.L.C.
By: /s/
-----------------------------------------
Name:
Title:
By: /s/
-----------------------------------------
Name:
Title:
JOINDER WITH RESPECT TO SECTION 13 ONLY
FIRSTCITY CONSUMER LENDING CORPORATION
By: /s/
-----------------------------------------
Name:
Title:
EXHIBIT A
---------
FORM OF TRUST RECEIPT
DATE
FirstCity Auto Receivables L.L.C.
Box 8216
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: Security and Collateral Agent Agreement, dated as of April
30, 1998 (the "Security Agreement") among FirstCity Auto
Receivables L.L.C., ContiTrade Services L.L.C. and Chase
Bank of Texas, National Association
----------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 7.07 of the Security Agreement, the
undersigned hereby certifies that it has taken possession of the items set forth
on Annex I hereto with respect to the Contracts on the attached schedule. The
undersigned (i) confirms that it holds such items in trust for the benefit of
the Lender and (ii) agrees to promptly return such items to the Collateral Agent
after its need for possession of them ceases, except with respect to any
Contract paid in full or liquidated, in which case the Servicer shall forward
all proceeds and/or recoveries to the Lockbox Account.
FIRSTCITY SERVICING CORPORATION
OF CALIFORNIA
By: /s/
-----------------------------------------
Name:
Title:
APPROVED
--------
CONTITRADE SERVICES L.L.C.
By: /s/
-----------------------------------------
Name:
Title:
EXHIBIT B
---------
FORM OF
LIMITED REVOCABLE POWER OF ATTORNEY
DATE: APRIL 30, 1998
Pursuant to the direction of Contitrade Services L.L.C. (the "Lender") under
Section 7.08(c) of the Security and Collateral Agent Agreement, dated as of
April 30, 1998 the ("Security Agreement"), among the Lender, Chase Bank of
Texas, National Association, a national banking association ("Chase Bank of
Texas"), as Collateral Agent, and FirstCity Auto Receivables L.L.C., as Borrower
(the "Borrower"), Chase Bank of Texas hereby permits FirstCity Servicing
Corporation of California to act on behalf of Chase Bank of Texas in connection
with the Warehouse Credit Agreement, dated as of April 30, 1998 the ("Credit
Agreement"), among the Lender, FirstCity Consumer Lending Corporation, the
Borrower and FirstCity Financial Corporation, and the Security Agreement, to
execute such legal documents and taken such legal proceedings as are required in
connection with the repossession and disposition, if necessary, of each item of
the collateral described in Annex A to this Power of Attorney, where Chase Bank
of Texas is the legal owner of record on an account assigned to FirstCity
Servicing Corporation of California for servicing. This is a limited revocable
power of attorney and only authorizes FirstCity Servicing Corporation of
California to act as expressly set forth herein. This limited revocable power of
attorney shall be deemed revoked upon the occurrence of an Event of Default (as
defined in the Credit Agreement) and shall be revocable at any time by Chase
Bank of Texas upon notice to the Borrower and the Lender.
CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION,
AS COLLATERAL AGENT
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President
Subscribed and sworn to before me, a Notary Public in and for the County of
Dallas, State of Texas, this ___ day of __________, 1998.
--------------------------------
Notary Public
ACKNOWLEDGED AND
APPROVED as of the date
first above written
CONTITRADE SERVICES L.L.C.
By:__________________________
Name:________________________
Title:_________________________
ANNEX A
TO
LIMITED REVOCABLE POWER OF ATTORNEY DATED APRIL 30, 1998
BY
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
Vehicle's
No. Debtor's Name Account No. Year, Brand, Model VIN