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EXHIBIT 10.41
CONTRIBUTION AND ASSUMPTION AGREEMENT
BY AND BETWEEN
FIRSTCITY CONSUMER LENDING CORPORATION
AND
DRIVE FINANCIAL SERVICES LP
AUGUST ___, 2000
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CONTRIBUTION AND ASSUMPTION AGREEMENT
THIS CONTRIBUTION AND ASSUMPTION AGREEMENT (this "AGREEMENT") dated as of
the 18th day of August 2000, by and between FIRSTCITY CONSUMER LENDING
CORPORATION, a Texas corporation ("CLC") and DRIVE FINANCIAL SERVICES LP, a
Texas limited partnership ("DRIVE").
CLC and Drive may be referred to collectively herein as "PARTIES" and
individually as a "PARTY."
RECITALS
WHEREAS, CLC owns eighty percent (80%) of the ownership interest of
FirstCity Funding L.P. ("AUTO"), a Texas limited partnership, and it owns or has
acquired other entities that are engaged in the business of purchasing or
originating retail installment sale contracts relating to the sale or
refinancing or new or used automobiles, light trucks, vans or mini-vans, and
from time to time has acquired or obtained title to residual interests and other
assets related to the business of Auto and such other entities; and,
WHEREAS, as part of the recapitalization of CLC and its Affiliates, CLC
seeks to acquire forty-five and forty-three one hundredths' percent (45.43%) of
the Membership Interests in Drive in exchange for which Drive agrees to accept
certain Assets (as defined below or set forth in Schedule 1.1(a)) of CLC and to
assume those liabilities and obligations of CLC set forth in Schedule 1.1(b),
(the "ASSUMED LIABILITIES").
NOW THEREFORE, in consideration of the mutual covenants made herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS; INTERPRETATION
"Affiliate" means with respect to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with such Person.
For the purposes of this Agreement, no Drive entity is considered an Affiliate
of any CLC or IFA entity.
"Agreement" means this Contribution Agreement, as originally executed and
as amended, modified or supplemented from time to time in accordance with its
terms.
"Assets" has the meaning set forth in Schedule 1.1(a).
"Assumed Liabilities" has the meaning set forth in the Recitals, above.
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"Best Knowledge" means, with respect to CLC or Drive, the actual knowledge
of each or any of the persons listed on Schedule 1.1(c), after reasonable
investigation and verification.
"Business Day" means any day that is not a Saturday, Sunday or day on which
banks in Texas or New York are authorized to close.
"CLC Contribution" has the meaning set out in Section 2.2 herein.
"Closing" has the meaning set forth in Section 2.1.
"Closing Date" has the meaning set forth in Section 2.1.
"Consent" has the meaning set forth in Section 4.5(a).
"Contracts" has the meaning set forth in Section 4.8(a).
"Cutoff Date" means August 1, 2000.
"Dealer" means, with respect to a Receivable, the executor of an assignment
conveying such Receivable to Drive.
"Dealer Agreement" means an agreement between Auto and a Dealer relating to
the sale of certain installment contracts to Auto or any of its Affiliates and
all documents and instruments relating thereto.
"Dealer Assignment" means, with respect to a Receivable, the assignment
executed by a Dealer conveying such Receivable to Drive.
"Encumbrance" means, with respect to any Property, any mortgage, lien,
pledge, charge, easement, trust arrangement, right of way, encroachment,
conditional sale or title retention arrangement, security interest or other
claim or right of any kind in respect of such Property, or any preferential
arrangement having the practical effect of constituting a security interest with
respect to the payment of any obligation with, or from the proceeds of, such
Property.
"Environmental Laws" means all amicable federal state and local laws
including statutes, regulations, ordinances, rules of common law and
Governmental Approvals, relating to the protection of public health and welfare
and/or the environment, including, without limitation, laws governing Regulated
Materials, laws relating to the storage, handling and use of chemicals, and laws
relating to the protection of environmentally sensitive areas.
"Financed Vehicle" means any new or used automobile, light duty truck, van,
minivan, or sport utility vehicle, together with all accessories, additions and
parts constituting a part thereof and all accessions thereto securing or
purporting to secure, an obligor's indebtedness under a Receivable.
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"GAAP" means the United States generally accepted accounting principles as
in effect from time to time, consistently applied.
"Governmental Approval" means any authorization, consent, approval,
license, ruling, permit, certification, exemption, filing, order, judgment,
decree, publication, notice, declaration, registration or other similar action
with, by, of or to any Governmental Authority.
"Governmental Authority" means any government, or any governmental
department, commission, agency, authority, instrumentality or subdivision, or
any judicial or administrative body, whether domestic, foreign, federal, state
or local, having jurisdiction over the matter or matters in question.
"Law" shall mean (a) any administrative, judicial, legislative, or other
action, code, consent, decree, constitution, decree, directive, enactment,
finding, law, injunction, judgment, order, ordinance, proclamation, regulation,
requirement, rule, statute, or writ of a Governmental Authority; or (b) the
common law.
"Losses" has the meaning set forth in Section 7.1 herein.
"Material Adverse Effect" means any effect (other than as a result of
changes in prevailing interest rates, or in GAAP) that is, or could reasonably
be expected to be materially adverse to (i) the Assets, or the ability of CLC or
Drive to perform its obligations under this Agreement, (ii) the ability of
Drive, after the Closing Date, to conduct its business as contemplated by the
Parties on such Closing Date, or (iii) the business, properties, operations or
condition (final or otherwise) of Drive or any of its Affiliates, after the
Closing Date.
"Member" means equity holder in a general or limited partnership or a
limited liability company.
"Membership Interest" means equity interest in a general or limited
partnership or a limited liability company.
"Parties" has the meaning set forth in the Introduction to this Agreement.
"Permitted Encumbrance" means (a) Encumbrances listed on Schedule 1.1(d);
(b) liens for Taxes not yet due and payable to the extent listed on Schedule 1.1
(b); (c) easements, rights-of-way, building or use restrictions, exceptions,
variances, reservations, or similar Encumbrances of record affecting but not
materially interfering with the current or intended use or operation of any of
the Assets; and, (d) materialmen's liens on Financed Vehicles constituting
collateral for any Receivable.
"Person" means an individual, corporation, partnership, limited liability
company, joint venture, trust, or unincorporated organization or a federal,
state, city municipal or foreign government or an agency or political
subdivision thereof
"Preferential Right" has the meaning set forth in Section 4.5(b).
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"Property" means any property of any kind whatsoever, whether real,
personal or mixed and whether tangible or intangible, and any right or interest
therein.
"Receivables" has the meaning set forth in Schedule 1.1(a) hereto.
"Regulated Materials" means any substance regulated under Environmental
Laws because of their effect or potential effect on public health and the
environment, including, without limitation, "Hazardous Substances," any
"Petroleum" and "Natural Gas Liquids," as those terms are defined or used in
Section 10 1 of the Comprehensive Environmental Response Compensation and
Liability Act (CERCLA), 42 U.S. C. Section 960 1, "Hazardous Wastes" as that
term is defined pursuant to Section 3001 of the Resource Conservation and
Recovery Act, 42 U.S.C. Section 6921, PCBs, chlorinated dioxins and furans, lead
paint, asbestos, urea formaldehyde, radioactive materials, putrescibles, and
infectious materials.
"Related Documents" has the meaning set forth in the Securities Purchase
Agreement among FirstCity Financial Corporation, a Delaware corporation; CLC;
Auto; FirstCity Funding GP Corp., a Texas corporation; IFA Drive GP Holdings
LLC, a Delaware limited liability company; and IFA Drive LP Holdings LLC, a
Delaware limited liability company, of even date herewith.
"Retail Contracts" means retail installment loan contracts originated by
Auto or an Affiliate of Auto.
"Returns" has the meaning set forth in Section 4.12.
"Taxes" means all taxes, assessments, charges, duties, fees, levies or
other governmental charges, including, without limitation, all Federal, state,
local, foreign and other income, franchise, profits, capital gains, capital
stock, transfer, sales, use, occupation, property, excise, severance, windfall
profits, stamp, license, payroll, withholding and other taxes, assessments,
charges, duties, fees, levies or other governmental charges of any kind
whatsoever (whether payable directly or by withholding and whether or not
requiring the filing of a Return), all estimated taxes, deficiency assessments,
additions to tax, penalties and interest and shall include any liability for
such amounts as a result either of being a member of a combined, consolidated,
unitary or affiliated group or of a contractual obligation to indemnify any
person or other entity.
"Interpretation" Each definition used in this Agreement includes the
singular and the plural, and reference to the neuter gender includes the
masculine and feminine where appropriate. The headings to the Articles and
Sections of this Agreement are for convenience of reference and shall not affect
the meaning or interpretation of this Agreement. Except as otherwise stated,
reference to Articles, Sections, Exhibits and Schedules means the Articles,
Sections, Exhibits and Schedules of this Agreement. The Exhibits and Schedules
referred to throughout this Agreement are hereby incorporated by reference into,
and shall be deemed a part of, this Agreement, provided that no Exhibit that
consists of a form of agreement or instrument shall be deemed to become
effective until executed and delivered by the applicable parties. Unless the
context clearly indicates otherwise, the word "including" when used in this
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Agreement means "including but not limited to," and the words "hereof," "herein"
and "hereunder" and words of similar import when used in this Agreement refer to
this Agreement as a whole and not to any particular provision of this Agreement.
Accounting Terms. All accounting terms not defined herein shall have the
meanings determined by GAAP.
ARTICLE 2
CLOSING; CONTRIBUTIONS; ASSUMPTIONS
2.1. Closing. The closing of the transactions provided for in this
Agreement and the Related Documents (the "CLOSING") shall be held at the offices
of ▇▇▇▇▇▇▇▇ & Worchester LLP ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ on
August ___, 2000 or at such place or on such other date as may be agreed to in
writing by the Parties (the "CLOSING DATE").
2.2. CLC Contribution. CLC hereby transfers, contributes, and delivers to
Drive the Assets set forth in Schedule 1.1(a) (the "CLC CONTRIBUTION").
2.3. Drive Contribution. (a) Simultaneous with the CLC Contribution and in
consideration thereof, CLC shall receive a forty-five and forty-three one
hundredths' percent (45.43%) Membership Interest in Drive.
2.4 Assumption of Liabilities. As of the Cutoff Date, Drive shall assume
the Assumed Liabilities, as set out in Schedule 1.1(b) hereto, and the Parties
hereby confirm and agree that on and after the Cutoff Date, Drive shall assume
all duties, obligations, and liabilities or claims against CLC related to the
securitization transactions; provided however, that Drive shall not assume or
otherwise be responsible for any obligations, known or unknown, contingent or
direct, asserted or unasserted that arise before the Cutoff Date with respect to
the securitization transactions, except as set forth in Schedule 1.1(b), nor any
duties, obligations and liabilities of, or claims against, CLC or any of its
Affiliates (or their respective employees, agents, officers, directors,
trustees, representatives, subsidiaries, past or present shareholders, or
Affiliates or any predecessor entities), including, without limitation, any
obligations to cure existing defaults (known or unknown or asserted or
unasserted) and any responsibility for any act, error or omission related to the
business of CLC or any of its Affiliates, or the Assets pertaining to the period
prior to the Cutoff Date. The assumption of liabilities by Drive under this
Section 2.4 shall not constitute a release by CLC or its Affiliates of the
duties, obligations, and responsibilities of CLC or its Affiliates under the
basic documents of the securitization transactions.
2.5. Reasonable Efforts to Satisfy Conditions. Each of the Parties shall
use its reasonable efforts to cause the deliveries and actions contemplated by
this Article 2 to be made or taken, and the conditions to Closing set forth in
Article 3 to be satisfied, by the Closing Date.
2.6 Post Closing Conduct of Business. The Parties agree and acknowledge,
and CLC hereby covenants to Drive, that the sole business activities of CLC,
from and after the Closing
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Date, will be (i) to hold its Membership Interest in Drive GP LLC; and (ii) to
hold its limited partnership interest in Auto; (iii) hold its ownership interest
in S L Funding Corporation, and (iv) hold and exercise ownership of those auto
loans acquired from First Fidelity Acceptance Corporation.
ARTICLE 3
CONDITIONS PRECEDENT
3.1. Conditions Precedent. (a) The obligation of each Party to consummate
the Closing is in each case subject to the satisfaction, or written waiver by
CLC and Drive, of the following conditions precedent on or before the Closing
Date:
(i) There shall have been no order or preliminary or permanent
injunction entered in any action or proceeding before any United States
federal or state court, or any foreign court, of competent jurisdiction or
Governmental Authority (which has jurisdiction over the enforcement of any
applicable Laws) making illegal or prohibiting the consummation of the
transactions contemplated hereby.
(ii) All Consents and Governmental Approvals, or registrations,
declarations or filings with, or expirations of waiting periods imposed by
or agreed with, any Governmental Authority necessary for the consummation
of the transactions contemplated hereby shall have been obtained, filed or
discharged or shall have occurred.
(iii) The certificate of limited partnership of Drive, in the form
attached hereto as Schedule 3.1(a)(iii) shall have been filed with the
Secretary of State of the State of Delaware.
(iv) Central National Bank shall have been instructed to deliver the
chattel paper evidencing the Receivables to Drive. However, if such chattel
paper is delivered to CLC, CLC will promptly deliver the chattel paper to
Drive.
(b) The obligation of Drive to consummate the Closing is subject to
the satisfaction or written waiver by it, of the following conditions precedent
on or before the Closing Date:
(i) The representations and warranties of CLC made in this Agreement
shall be true and correct in all material respects as of the Closing Date
(or, to the extent such representation and warranty expressly relates to an
earlier date, as of such earlier date) and CLC shall have delivered to
Drive an officer's certificate, dated the Closing Date, to such effect.
(ii) CLC shall have performed or complied in all material respects
with all obligations and covenants required by this Agreement to be
performed or complied with by it as of the Closing Date, and CLC shall have
delivered to Drive an officer's certificate, dated the Closing Date, to
such effect.
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(iii) CLC shall have furnished or caused to be furnished to Drive a
secretary's certificate of CLC attaching thereto board resolutions or other
authorizing documents in respect of the transactions contemplated by this
Agreement, a certification of the incumbency of those Persons executing
this Agreement on behalf of such Person, and true and correct copies of all
organizational documents of such Person (including all amendments and
supplements thereto).
(iv) CLC shall have received any and all required Consents to the
transactions contemplated by this Agreement, in form and substance
satisfactory to Drive.
(v) All corporate and other proceedings in connection with the
transactions contemplated by this Agreement and all documents and
instruments incident to such transactions shall be satisfactory to Drive
and its special counsel, and Drive and its special counsel shall have
received all such information and counterpart originals or certified or
other copies of such documents and certificates as Drive or such special
counsel may reasonably request in connection with the matters contemplated
hereby.
(vi) Drive shall have received a certificate as to the good standing
of and payment of franchise taxes by CLC from the Secretary of State of the
State of Texas (to the extent such certificates are generally issued by
such Secretary of State), dated as of a date no earlier than ten (10) days
prior to the Closing Date.
(vii) CLC shall have taken all steps necessary to include Drive as
recipient for all notices and other documentation delivered or deliverable
to CLC relating to the Assets or Assumed Liabilities, and Drive shall have
received all notices and other documentation submitted by or to any Person
to give effect to such additional notice requirement.
(c) The obligation of CLC to consummate the Closing is subject to the
satisfaction, or written waiver by CLC of the following conditions precedent at
or before the Closing:
(i) The representations and warranties of Drive shall be true and
correct in all material respects (except if such representation or warranty
is subject to a materiality or Material Adverse Effect threshold, in which
case it shall be true and correct in all respects) as of the Closing Date
(or, to the extent such representation and warranty expressly relates to an
earlier date, as of such earlier date), other than any representation and
warranty the breach of which would not result in a Material Adverse Effect,
and Drive shall have delivered to CLC an officer's certificate, dated the
Closing Date, to such effect.
(ii) Drive shall have performed or complied in all material respects
with all obligations and covenants required by this Agreement to be
performed or complied with by it as of the Closing Date, and shall have
delivered to CLC an officer's certificate, dated the Closing Date, to such
effect.
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(iii) Drive shall have furnished or caused to be furnished to CLC a
secretary's certificate of Drive, attaching thereto board resolutions or
other authorizing documents in respect of the transaction contemplated by
this Agreement, a certification of the incumbency of those Persons
executing this Agreement on behalf of such Person, and true and correct
copies of all organizational documents of such Person (including all
amendments and supplements thereto).
(iv) All corporate and other proceedings in connection with the
transactions contemplated by this Agreement and all documents and
instruments incident to such transactions shall be satisfactory to CLC, and
CLC shall have received all such information and counterpart originals or
certified or other copies of such documents and certificates as CLC or its
special counsel may reasonably request in connection with the matters
contemplated hereby and by the other.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF CLC
CLC represents and warrants to Drive as of the date hereof as follows, and
Drive, in agreeing to consummate the transactions contemplated by this Agreement
to which it is a Party has relied upon such representations and warranties.
4.1. Standing. (a) CLC is a corporation duly formed, validly existing and
in good standing under the laws of Texas and has the requisite power and
authority to own, lease and operate its properties and to carry on its business
as now being conducted.
(b) CLC is duly qualified or licensed to do business as a foreign
corporation and is in good standing in each jurisdiction in which the use or
ownership of its assets or the conduct of its business requires such license or
qualification, except where the failure to be so qualified or licensed would not
have a Material Adverse Effect.
4.2. Requisite Authority, Etc. CLC has all requisite power and authority to
enter into and perform this Agreement. All necessary action on the part of CLC
has been taken to authorize the execution and delivery of this Agreement, the
performance of its obligations under this Agreement, and the consummation of the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by CLC and constitutes a valid and binding Agreement,
enforceable in accordance with its terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium and similar
laws of general application relating to or affecting creditors' rights generally
and to general principles of equity (regardless of whether such enforceability
is considered in an proceeding in equity or at law).
4.3. No Conflict. Neither the execution and delivery of this Agreement, nor
the consummation of the transactions contemplated hereby, nor compliance by CLC
with any of the provisions of this Agreement will (i) violate or conflict with
any provision of the charter, certificate of formation, articles of
incorporation, bylaws or other governing documents of CLC
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or any Law, judgment, order, writ, decree or injunction applicable to CLC, or
(ii) violate, or conflict with, or result in a breach of any provision of, or
constitute a default (or any event which, with or without due notice or lapse of
time, or both, would constitute a default) under, or result in the termination
of, accelerate the performance required by, or result in the creation of any
Encumbrance upon the Assets or any of the properties or assets of CLC under any
contract, note, bond, mortgage, indenture, deed of trust, license, lease,
agreement, permit or other instrument or obligation of which such is a party or
by which it or any of its assets are bound.
4.4. Ownership. CLC is the sole beneficial owner of and has good, valid
legal and indefeasible title to all of the Assets, free and clear of all
Encumbrances other than Permitted Encumbrances.
4.5. Consents. (a) Except as set forth on Schedule 4.5, no permit,
application, notice, transfer, consent, approval, order, qualification, waiver
from or authorization of, or declaration, filing or registration with, any
governmental or regulatory authority or third party (each, a "CONSENT") is
required to be made or obtained by CLC or any of its Affiliates in connection
with the execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated by this Agreement and, each such
Consent has been obtained and is in full force and effect, and any notice
requirements and any waiting period therefor have expired, as of the Closing
Date.
(b) No right of first refusal, preemptive right, right of first offer
and other similar rights to acquire the Assets (each a "PREFERENTIAL RIGHT") are
required to be complied with by CLC in connection with the execution, delivery
or performance of this Agreement or the consummation of the transactions
contemplated by this Agreement. With respect to each such Preferential Right,
CLC and each of its Affiliates has complied with all of the requirements of the
underlying agreement which provides such Preferential Right, or the holder
thereof has waived its right to exercise such Preferential Right, as of the
Closing Date.
4.6. Compliance with Law. CLC has been, and on the Closing Date is in
compliance in all material respects with all Laws applicable to or otherwise
concerning the Assets and the Assumed Liabilities.
4.7. Litigation Claims. There are no material unsatisfied judgments,
claims, proceedings, actions, governmental investigations, orders or lawsuits in
existence or, to the Best Knowledge of CLC, threatened against or with respect
to, CLC or any of the Assets or Assumed Liabilities, except for judgments,
claims, proceedings, actions, governmental investigations, orders or lawsuits
involving collection failure or foreclosure proceedings.
4.8. Contracts and Commitments. (a) Schedule 4.8 reflects a complete and
accurate list of each material contract, agreement or letter of intent or
written understanding (including all amendments and supplements thereto) entered
into by CLC that pertains to the Assets or the Assumed Liabilities (the
"CONTRACTS") (it being understood that any contract, agreement or letter of
intent or written understanding requiring aggregate payments in excess of
$50,000 or with a fixed term of more than one year shall be deemed to be a
"material" contract, agreement or letter of intent or written understanding).
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(b) All of the Contracts either have been entered into and are
currently in the name of CLC or its Affiliates, or have been assigned to CLC or
its Affiliates (and such assignment has been consented to by all counterparties
thereto necessary to make such assignment effective). Except as set forth in the
immediately preceding sentence, none of the Contracts has been assigned by CLC
or its Affiliates to any third party or is the subject of any Encumbrance (other
than Permitted Encumbrances) and, (i) each of the Contracts is a valid and
binding obligation of CLC or its Affiliates and, to the Best Knowledge of CLC,
is enforceable by the other party or parties thereto and will be enforceable by
Drive, in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization or similar laws or equitable principles
relating to creditors' rights generally; (ii) neither CLC nor its Affiliates,
nor to the Best Knowledge of CLC any other party thereto, has terminated,
canceled, modified or waived any term or condition of any Contract, no such term
or condition has been amended and no proposals or discussions with third parties
for any such termination, modification, amendment or waiver is ongoing; (iii)
neither CLC nor its Affiliates, is in default or alleged to be in default under
any Contract, and to the Best Knowledge of CLC, no unasserted claim or dispute
under any Contract exists; and (iv) to the Best Knowledge of CLC or its
Affiliates, there exists no event, condition or occurrence that, after notice or
lapse of time, or both, would constitute such a default, claim or dispute by CLC
or its Affiliates or, to the Best Knowledge of CLC by any other party thereto;
and, (v) none of such Contracts contains a right of first refusal or change of
control provision that will be triggered by the consummation of the transactions
contemplated by this Agreement.
4.9. Liens. None of the Assets are subject to any Encumbrance, except for
Permitted Encumbrances, nor will the transfer of any Assets hereunder cause any
Encumbrances to arise.
4.10. Capitalization and Ownership. CLC and Auto together, own beneficially
and of record 100% of the outstanding Member Interests of FCAR Receivables,
L.L.C., free and clear of all Encumbrances other than Permitted Encumbrances.
Except as set forth on Schedule 4.10, there are no (i) outstanding options,
warrants, purchase rights, subscription rights, conversion rights, exchange
rights or other contracts, commitments, arrangements or understandings relating
to the issuance by or purchase from CLC of its equity interests, (ii)
outstanding stock appreciation, phantom stock, profit participation or similar
rights with respect to or any or the key personnel or (iii) voting trusts,
proxies or other Agreements or understandings with respect to the voting of
Membership Interests to which CLC is party.
4.11. Financial Statements; Absence of Certain Changes. Prior to the
execution of this Agreement, CLC has delivered to Drive the following financial
statements, each of which has been certified by the principal financial officer
of CLC as being complete and correct in accordance with GAAP: (i) the balance
sheet of CLC as of July 31, 2000, and (ii) financial statements for the years
ended December 31, 1999, December 31, 1998 and December 31, 1997. Since the date
of the financial statements, there has been not event or circumstance that has
or could reasonably be expected to have a Material Adverse Effect.
4.12. Taxes. (a) CLC has filed or caused to be filed with the appropriate
taxing authorities all federal, state and local tax returns ("RETURNS") which
are required to be filed. The
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Returns accurately reflect all liabilities for Taxes of CLC for the periods up
to and including December 31, 1999. All Taxes due by or with respect to CLC,
whether or not shown on any Return, have been or will be timely paid in full on
or prior to the Closing Date or accrued and adequately disclosed and fully
provided for on the books and records of CLC in accordance with GAAP. There is
no dispute or claim concerning any liability for Taxes of CLC or any assets
thereof that has been claimed or raised by any Governmental Authority. No Return
of CLC or its Affiliates is currently, or has been, the subject of an audit by
any taxing authority and no notice of such an audit has been received. CLC has
not waived any statute of limitations in respect of Taxes or agreed to any
extension of time with respect to a Tax assessment, Tax filing, or deficiency.
(b) All Taxes which CLC is (or was) required by Law to withhold or
collect with respect to any payments made in connection with the Assets have
been duly withheld or collected, and have been timely paid over to the
appropriate authorities to the extent due and payable.
4.13. Governmental Approvals. No Governmental Approvals are necessary in
connection with the CLC's Contribution or the assumption by Drive of any Assumed
Liabilities.
4.14. Employees. CLC is not (i) presently a party to any collective
bargaining Agreement, (ii) subject to a legal duty to bargain with any labor
organization on behalf of employees, or (iii) operating under any expired
collective bargaining agreement. To the Best Knowledge of CLC, there are no
organizational efforts presently being made or threatened by or on behalf of any
labor union with respect to employees of CLC. Since January 1, 1999, CLC has not
been a party to, or subject to any pending strike, work stoppage, organizing
attempt, picketing, boycott or similar activity.
4.15. Disclosure. All documents, reports and other written information
pertaining to CLC or the Assets or Assumed Liabilities that have been furnished
to Drive by or on behalf of CLC, taken as a whole, are true and correct in all
material respects and do not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements contained therein not misleading. There is no fact, event or
circumstance that has not been disclosed to Drive in writing, the existence of
which could reasonably be expected to have a Material Adverse Effect.
4.16. Brokers' or Finders' Fees. No agent, broker, investment banker,
Person or firm acting on behalf of CLC or any of its Affiliates or under the
authority of CLC or any of its Affiliates is or will be entitled to any brokers'
or finders' fee or any other commission or similar fee directly or indirectly
from any of the Parties hereto or any other Person in connection with any of the
transactions contemplated hereby.
4.17. Transfer. The amount paid to CLC hereunder for the Assets represents
"fair value" or "reasonably equivalent value" (or words of similar import) under
applicable federal and/or state bankruptcy or insolvency laws for such Assets
and, accordingly, none of the transfers represents a "fraudulent conveyance" or
"fraudulent transfer" (or words of similar import) under applicable federal or
state bankruptcy or insolvency laws.
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4.18 Notices to Creditors. Neither CLC nor any of its Affiliates is
required by applicable law to deliver any notice to any of its creditors or
those of its Affiliates (or any state or local taxing authority) stating that it
is about to transfer substantially all of its assets.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF CLC
WITH RESPECT TO RECEIVABLES
CLC represents and warrants to Drive, with respect to the Receivables and
as of the date hereof as follows, and Drive, in agreeing to consummate the
transactions contemplated by this Agreement to which it is a Party has relied
upon such representations and warranties.
5.1 Contract Origination Date. Each Receivable has a contract origination
date on or before the Cutoff Date.
5.2 Characteristics of Receivables. Each Receivable (1) is denominated in
U.S. dollars and has been originated in the United States of America by CLC or
by a Dealer for the retail sale of a Financed Vehicle in the ordinary course of
such Dealer's business in each case in accordance in all material respects with
CLC 's credit approval guidelines, and, to the Best Knowledge of CLC, such
Dealer had all necessary licenses and permits to originate Receivables in the
state where such Dealer was located, (2) was fully and properly executed by the
parties thereto, (3) if originated by a Dealer, was purchased by CLC from such
Dealer under an existing Dealer Agreement and Dealer Assignment, (4) contains
customary and enforceable provisions such that the rights and remedies of the
holder or assignee thereof shall be adequate for realization against the
collateral of the benefits of the security.
5.3 Compliance with Law. No Receivable nor the sale of the related Financed
Vehicle, at the time the related Receivable was originated or made, contravened
in any material respect, or at the date of transfer thereof contravenes in any
material respect, any requirements of applicable federal, state and local laws,
or regulations thereunder including, without limitation, usury laws, the Federal
Truth-in Lending Act, the Equal Credit Opportunity Act, the Fair Credit
Reporting Act, the Fair Debt Collection Practices Act, the Federal Trade
Commission Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇ Warranty Act, the Federal Reserve Board's
Regulations B and Z, the Soldiers' and Sailors' Civil Relief Act of 1940, each
applicable state Motor Vehicle Retail Installment Sales Act, and state
adaptations of the National Consumer Act and of the Uniform Consumer Credit
Code, and other consumer credit laws and equal credit opportunity and disclosure
laws.
5.4 Security Interest in Financed Vehicle. Except with respect to
Receivables that represent a deficiency balance, charge-off or foreclosure, each
Receivable has created, or, as to those originated less than 120 days ago, will
create when all required procedures are completed by the servicer, a valid,
subsisting and enforceable first priority perfected security interest in the
related Financed Vehicle in favor of CLC or a custodian for CLC as secured
party. Upon the sale hereunder to Drive and compliance by Drive with any
applicable statutory requirements, Drive
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or a custodian for Drive as secured party will have a first priority perfected
security interest in the related Financed Vehicle. Such security interests are,
or will be upon the completion of all required procedures by the Servicer, prior
to all other liens upon, and security interests in such Financed Vehicle that
now exist or may hereafter arise or be created (except, as to priority, any tax
liens or mechanics' liens that may arise after the applicable purchase date).
5.5 Insurance, Other. CLC, in accordance with its customary procedures, has
determined (a) each Obligor, at the time of origination, had obtained or agreed
to obtain insurance covering the Financed Vehicle as of the execution of the
Receivable insuring against loss and damage due to fire, theft, transportation,
collision and other risks generally covered by comprehensive and collision
coverage (i) in an amount at least equal to the lesser of (x) its maximum
insurable value or (y) the principal amount due from the Obligor under the
related Receivable and (b) no Receivable has force-placed insurance.
5.6 Title. No Receivable has been sold, transferred, assigned or pledged by
CLC to any Person. CLC has good and marketable title to each Receivable, as
described in the Assets Schedule and is the sole owner thereof, free and clear
of all Liens. As of the Closing Date, no Dealer, or any other Person other than
CLC, has a participation in, or other right to receive proceeds of any
Receivable. CLC has not taken any action to convey any right to any Person that
would result in such Person having a right to payments received under the
related insurance policies or the related Dealer Agreements or Dealer
Assignments or to payments due under such Receivables.
5.7 Lawful Assignment. No Receivable has been originated in, or is subject
to the laws of, any jurisdiction under which the sale, contribution, transfer
and assignment of such Receivable under this Agreement is or shall be unlawful,
void or voidable. CLC has not entered into any agreement with any account debtor
that prohibits, restricts or conditions the assignment of any portion of the
Receivables.
5.8 All Filings Made. All filings (including, without limitation, UCC
filings) necessary in any jurisdiction to give CLC or its custodian a first
priority perfected ownership interest in the Receivables, have been made.
5.9 One Original. There is only one original executed copy of each
Receivable. Each such original will be delivered to Drive or its designated
custodian on or about the Closing Date.
5.10 Valid and Binding Obligation of Obligor. Each Receivable is the legal,
valid and binding obligation of the obligor thereunder and is enforceable in
accordance with its terms, except only as such enforcement may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally.
5.11 Title Documents. If any Financed Vehicle was originated in a state in
which notation of security interest on the title document is required or
permitted to perfect such security interest, the title document for such
Financed Vehicle shows, or if a new or replacement title document is being
applied for with respect to such Financed Vehicle, the title document will be
received within 180 days and will show, CLC as the original secured party under
the related
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Receivables as the holder of a first priority security interest in such Financed
Vehicle, and (B) if any Financed Vehicle was originated in a state in which the
filing of a financing statement under the UCC is required to perfect a security
interest in motor vehicles, such filings or recordings have been duly made and
show CLC as the original secured party under the related Receivable, and in
either case, no further action is required under the UCC or any titling statute
or act to continue the perfected status of the first priority security interest
in the Financed Vehicle against creditors of and transferees from the original
Obligor.
5.12 Chattel Paper. Each Receivable constitutes "chattel paper" under the
UCC.
5.13 Right to Assign. CLC has the full and unqualified right to assign and
transfer such Receivables to Drive hereunder.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF DRIVE
Drive represents and warrants as of the date hereof to CLC as follows,
and CLC has relied upon such representations and warranties.
6.1. Standing. (a) Drive is a limited partnership duly formed, validly
existing and in good standing under the laws of the State of Delaware and has
the requisite power and authority to own, lease and operate its properties and
to carry on its business as now being conducted.
(b) Drive is duly qualified or licensed to do business as a foreign
corporation and is in good standing in each jurisdiction in which the use and
ownership of its assets or the conduct of its business requires such license or
qualification, except where the failure to be so qualified or licensed would not
have a Material Adverse Effect.
6.2. Requisite Authority. Drive has all requisite power and authority to
enter into this Agreement. All necessary action on the part of Drive has been
taken to authorize the execution and delivery of this Agreement, the performance
of its obligations hereunder and the consummation of the transactions
contemplated hereby. This Agreement shall have been duly and validly executed
and delivered by it, and constitutes the valid and binding agreement of Drive,
enforceable against Drive in accordance with its respective terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general application
relating to or affecting creditors' rights generally and to general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
6.3. No Conflict. Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby, nor compliance by it
with any of the provisions hereof will (i) violate or conflict with any
provision of the charter or bylaws or other governing documents of Drive, or any
Law, judgment, order, writ, decree or injunction applicable to Drive, or (ii)
violate, or conflict with, or result in a breach of any provision of, or
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constitute a default (or any event which, with or without due notice or lapse of
time, or both, would constitute a default) under, or result in the termination
of, accelerate the performance required by, or result in the creation of any
Encumbrance upon any of the properties or assets of Drive under any contract,
note, bond, mortgage, indenture, deed of trust, license, lease, Agreement or
other instrument or obligation of which Drive is a party or by which it or any
of its assets are bound.
6.4. Consents, Preferential Right. No Consent is required to be made or
obtained, and no Preferential Right is required to be complied with by Drive in
connection with the execution, delivery and performance of this Agreement or the
consummation by it of the transactions contemplated hereby.
6.5. Brokers' or Finders' Fees. No agent, broker, investment banker, Person
or firm acting on behalf of Drive or any of its Affiliates or under the
authority of Drive or any of its Affiliates is or will be entitled to any
brokers' or finders' fee or any other commission or similar fee directly or
indirectly from any of the Parties hereto in connection with any of the
transactions contemplated hereby.
6.6. Regulatory Status. Neither Drive nor any of its subsidiaries is a
"holding company" or a "subsidiary company" or an "affiliate" of a "holding
company" under the Public Utility Holding Company Act.
ARTICLE 7
INDEMNIFICATION
7.1. CLC 's Indemnity. From and after the Closing, CLC shall hold harmless
and indemnify Drive, its respective officers, directors, equity holders,
employees and agents, and their respective successors and assigns from, against
and in respect of any and all losses, liabilities, deficiencies, penalties,
fines, costs, damages and expenses whatsoever (including reasonable attorneys
fees, accounting fees and costs of investigation, litigation, settlement and
judgment and interest) (collectively, the "LOSSES") that may be suffered or
incurred by any of them arising from or by reason of any of the following:
(1) any breach of any representation or warranty made by CLC or any of its
Affiliates in this Agreement or contained in any certificate executed by CLC and
delivered to Drive by CLC in connection with this Agreement;
(2) any breach of any covenant made by CLC or any of its Affiliates in this
Agreement;
(3) any failure by CLC or any of its Affiliates to perform, pay or
discharge (or cause to be performed, paid or discharged) any liabilities other
than Assumed Liabilities;
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(4) any claims, lawsuits or other proceedings arising from transactions
contemplated by this Agreement; and,
(5) all Taxes relating to the income, operations or assets of CLC (other
than sales or transfer taxes resulting from this Agreement) imposed on Drive or
its Affiliates for all taxable years or periods that end on or prior to the
Closing Date and, with respect to any taxable year or period beginning before
and ending after the Closing Date, the portion of such taxable year or period
ending on and including the Closing Date.
7.2 Drive's Indemnity. From and after the Closing, Drive shall hold
harmless and indemnify CLC and its respective officers, directors, stockholders,
employees and agents, and their respective successors and assigns from, against
and in respect of any and all Losses that may be suffered or incurred by any of
them arising from or by reason of any of the following:
(1) any breach of any representation or warranty made by Drive in this
Agreement or contained in any certificate executed by Drive and delivered to CLC
in connection with this Agreement;
(2) any breach of any covenant made by Drive in this Agreement;
(3) the failure of Drive to discharge any Assumed Liability or any
liability referred to in Section 2.4 herein; and,
(4) any claims arising out of Drive's failure to properly service the
Receivables on or after August 1, 2000.
7.3 Payment of Claims, Right of Offset. The indemnifying party shall pay
any claim for which it is responsible hereunder within fifteen (15) days after
receipt of notice of such claim. After the expiration of such fifteen (15) days,
interest shall accrue at the Fed Funds Rate on claims not paid within this
fifteen (15) day period. IN THE EVENT AN INDEMNIFYING PARTY IS REQUIRED TO
INDEMNIFY OR MAKE PAYMENTS TO ANY CLAIMANT UNDER ANY PROVISION OF THIS
AGREEMENT, SUCH CLAIMANT SHALL NOT BE ENTITLED TO OFFSET THE AMOUNT OF SUCH
REQUIRED INDEMNITY OR ANY CLAIM FROM ANY AND ALL AMOUNTS THAT ANY CLAIMANT, OR
ANY AFFILIATE OF A CLAIMANT, NOW OR HEREAFTER OWED OR MAY OWE TO ANY
INDEMNIFYING PARTY OR ANY AFFILIATE OF ANY INDEMNIFYING PARTY, HEREUNDER,
THEREUNDER OR OTHERWISE.
7.4 Limitation on Amount. Until the total of all Losses with respect to
such matters exceeds $250,000.00 and then only for the amount by which such
Losses exceed $250,000.00,
(i) CLC shall have no liability (for indemnification or otherwise) with
respect to any of the matters described in this Section 7; and
(ii) Drive shall have no liability (for indemnification or otherwise) with
respect to Section 7.2 (1) herein.
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However, this Section 7.4 will not apply to matters arising in respect of any
breach of any of the Parties' representations and warranties of which such Party
had knowledge at any time prior to the Closing Date or any intentional breach by
a Party of any representation, warranty, or obligation of such Party.
ARTICLE 8
MISCELLANEOUS PROVISIONS
8.1. Survival of Representations. All representations and warranties in
Articles 4, 5 and 6 herein, unless otherwise specified in this Agreement or in
any certificate executed and delivered by any Party in connection with this
Agreement, shall be true on the date hereof, and on the Closing Date, and such
representations and warranties shall continue in full force and effect and shall
survive for twenty-four (24) months following the Closing Date (unless such
representation and warranty involves Taxes, in which case such representation
and warranty shall continue in full force and effect and shall survive for six
(6) years), for the benefit of the Party or Parties for which such
representations and warranties were made or any collateral assignee of such
Party. No claim shall be made by a Party in respect of such representations and
warranties unless it shall have provided written notice of the claim, containing
reasonable particulars thereof, to the other Party or Parties within twenty-four
(24) months (or six (6) years, if applicable) following the Closing Date.
8.2. Amendment. Any amendment to this Agreement must be in writing and
executed and delivered by each Party.
8.3. Notices. Any written notice or communication to any of the Parties
required or permitted under this Agreement shall be deemed to have been duly
given and received (i) on the date of service, if served personally or sent by
facsimile transmission (and confirmed by telephone) to the party to whom notice
is to be given, or (ii) on the next day if sent by a nationally recognized
courier for next day service and so addressed and if there is evidence of
acceptance by receipt, if sent as follows (or to such other address or facsimile
as may be provided in a written notice the other Parties):
(a) If to CLC:
▇.▇. ▇▇▇ ▇▇▇▇ (Mail)
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Deliveries Only)
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(b) If to Drive:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇-▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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8.4. Multiple Counterparts. This Agreement shall be executed upon
signature, by delivery or by facsimile, in any number of counterparts, all of
which taken together shall constitute one and the same agreement, and any of the
parties hereto may execute this Agreement by signing any such counterpart.
8.5. Governing, Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO ITS
CONFLICT OF LAWS DOCTRINE.
8.6. Binding Effect. This Agreement shall be binding on all successors and
assigns of the Parties and inure to the benefit of the respective permitted
successors and assigns of the Parties, except to the extent of any express
contrary provision in this Agreement.
8.7. Partial Invalidity. If any term, provision, covenant, or condition of
this Agreement is held by a court of competent jurisdiction to be invalid, void,
or unenforceable, the rest of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired, or invalidated.
8.8 Assignment. No Party may assign its rights or obligations under this
Agreement without the written consent of the other Party, which consent may be
granted in the sole discretion of such other Party; provided however, that Drive
may assign its rights hereunder without the consent of CLC, to IFA Incorporated,
as agent or collateral agent, or to any Affiliate of IFA Incorporated with
respect to loans, or agreements to make loans by IFA Incorporated or any of its
Affiliates to Drive, such assignment hereby being specifically consented to by
CLC.
8.9. Entire Agreement. This Agreement contains the entire agreement of the
Parties relating to the rights granted and obligations assumed in this Agreement
and supersedes any other agreement solely between the Parties with respect to
the transactions contemplated hereby. Any oral representations or modifications
concerning this instrument shall be of no force or effect unless contained in a
subsequent written modification signed by each Party.
8.10. No Rights in Third Parties. The provisions of this Agreement are for
the benefit of the Parties, and are not intended to be for the benefit of any
Person to whom any debts, liabilities or obligations are owed, or who otherwise
has any claim against any Party, and no creditor or other Person shall obtain
any rights under such provisions or solely by reason of such provisions shall be
able to make any claims in respect of any debts, liabilities or obligations
against any of the Parties (in each case except as permitted in Section 8.8 with
respect to permitted assignees).
8.11. Consent to Jurisdiction. Each Party agrees that any legal action or
proceeding relating to or arising out of this Agreement shall be brought to the
exclusive jurisdiction of the courts of the State of Texas (without prejudice to
the right of any Party to remove to the United
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▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ for Texas or the United States District Court of Texas) in
each case except to the extent that any such action or proceeding involves IFA
Incorporated or any of its Affiliates, and (subject to the foregoing exception)
each Party hereby accepts generally and unconditionally the jurisdiction of such
courts. Each Party further irrevocably consents to the service of process out of
any of the aforementioned courts in any such action or proceeding by the mailing
of copies thereof by registered or certified mail, postage prepaid, to such
Party at its address set forth in Section 8.3 hereof, such service to become
effective upon receipt of such mailing. To the fullest extent permitted by
applicable law, each Party hereby waives and agrees not to assert by way of
motion, defense, counter-claim or otherwise, in any such suit, action, or
proceeding, any claim that (a) it is not personally subject to the jurisdiction
of any of such courts by reason of any immunity or otherwise, (b) its properties
are immune or exempt from setoff, execution or attachment either prior to
judgment or in aid of execution or (c) any suit, action or proceeding so brought
is in an inconvenient forum or that the venue of the suit, action or proceeding
is improper or that the subject matter hereof may not be enforced in or by such
courts.
8.12. Further Assurance. Each Party agrees that at any time, and from time
to time, after the Closing Date, it will do all such things and execute and
deliver all such agreements, documents, and other assurances, as any other party
or its counsel reasonably deems necessary or desirable in order to carry out the
terms and conditions of this Agreement and the transactions contemplated hereby
or to facilitate the enjoyment of any of the rights created hereby, and to
execute, with acknowledgment or affidavit, if required, any and all documents
and writings which may be necessary or expedient to evidence the intent of this
Agreement , including but not limited to those actions, if any, that Drive
reasonably asks CLC to take with respect to insurance on the Financed Vehicles.
8.13. Confidentiality. (a) Except as permitted by paragraph (b) or (c)
below, each of the Parties agrees that any press release or public communication
of any nature by itself or any of its Affiliates, agents, advisers or
representatives concerning or characterizing (i) the terms of this Agreement,
(ii) the business purpose of the transaction, or (iii) the relationship among
the Parties, shall be prohibited.
(b) Except as hereinafter provided, each Party shall treat as confidential
the proprietary information of the other Party and use at least the same degree
of care as it uses to protect the confidentiality of its own proprietary
information of similar kind, to prevent the disclosure of any such information
to any third party, unless such confidential information (i) was already in the
possession of the receiving Party, or an Affiliate thereof, at the time it
obtained such confidential information hereunder, (ii) was or is published or
otherwise is or becomes generally available to the public through no fault of
such receiving Party or its Affiliate or (iii) was or is made available to such
Party or its Affiliate without restriction by any person or entity which is not
bound by, and does not impose, an obligation of confidentiality with respect
thereto. Further, none of the Parties shall use any such confidential
information (other than its own) for any purpose other than in connection with
the activities pursuant to this Agreement.
(c) Notwithstanding the foregoing, the following communications by a Party
shall be permitted:
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(1) disclosures to the public or to governmental authorities (including the
Securities and Exchange Commission) which are considered necessary by counsel to
the receiving Party to maintain compliance with, or to prevent violation of,
applicable laws, provided that in any case copies shall be provided to the other
Party; and (2) communications to Affiliates and officers, directors, agents,
advisors, representatives and employees of such Affiliates, provided the
receiving Party shall take reasonable steps to ensure that such Affiliates,
officers, directors, agents, advisors representatives and employees use such
information and maintain the confidentiality of such communications and
information in the manner set forth in this Section 8.13; and
(2) disclosures to third parties of information relating solely to (but not
any confidential information relating to a particular Party that is not an
Affiliate of the disclosing Party) which are necessary in connection with any
financing requirements of such Party or any of its Affiliates; provided that the
disclosing Party shall have delivered to the other Party a confidentiality
agreement executed by such third parties in form and substance approved by the
other Parties, which approval shall not be unreasonably withheld; provided
however, that such confidentiality agreement shall not be required for
disclosures to Bank of Scotland, IFA Drive GP Holdings LLC, IFA Drive LP
Holdings LLC, or IFA Incorporated.
(d) The Parties agree that no adequate remedy at law exists for a material
breach or threatened material breach of any of the provisions of this Section
8.13, the continuation of which breach or threatened breach will cause the
injured Parties to suffer irreparable harm. Accordingly, the Parties agree that
the injured Party shall be entitled to immediate injunctive relief from any
material breach or threatened material breach of any provision of this Section
8.13 and to specific performance of its rights hereunder, as well as to any
other remedies available at law or in equity.
8.14. No Assumed Materiality. Neither the specification of any dollar
amount in any representation or warranty nor the mere inclusion of any item in a
Schedule as an exception to a representation or warranty shall be deemed an
admission by a Party that such item represents a material fact, event or
circumstance or that such item is reasonably likely to result in a Material
Adverse Effect.
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IN WITNESS WHEREOF, this Agreement has been executed as of the date first
above written.
FIRSTCITY CONSUMER LENDING CORPORATION
By:
-----------------------------------------------
Name:
Title:
DRIVE FINANCIAL SERVICES LP
By Drive GP LLC, its general partner
By:
----------------------------------------
Name:
Title:
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SCHEDULE 1.1(a)
ASSETS
All right, title, and interest in and to all of the following assets, free
and clear of all Encumbrances other than Permitted Encumbrances (collectively,
the "ASSETS"):
1. Any and all Retail Contracts of CLC, including but not limited to the
Retail Contracts attached hereto as Exhibit 1.1(a) - 1 (the "Receivables"), and
any deficiencies and charge-off loans originated by National Auto Funding
Corporation.
2. All assets on the itemized list, attached.
3. Any and all other assets utilized by Auto in its auto finance operations
in Dallas, Texas.
4. "Assets" does not include assets related to ETA First Funding
Corporation and SL Funding Corporation, loans related to First Fidelity
Acceptance Corporation, National Auto Funding Corporation located in Waco,
Texas, or any assets of the foregoing entities.
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SCHEDULE 1.1(b)
ASSUMED LIABILITIES
1. All duties, obligations, and liabilities or claims against CLC related
to the securitization transactions arising on or after the Cutoff Date.
2. All liabilities and obligations listed on the itemized list, attached.
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SCHEDULE 1.1(c)
BEST KNOWLEDGE
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
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SCHEDULE 1.1(d)
PERMITTED ENCUMBRANCES
1. Escrow Fund in favor of MBIA Insurance Company.
2. Security interests in the assets of FCAR Receivables LLC held by Norwest
Bank Minnesota, N.A. (now ▇▇▇▇▇ Fargo Bank Minnesota, N.A.), as Collateral
Agent.
3. Landlord liens under the lease of office space of FirstCity Servicing
Corporation of California located in Tustin, California and of FirstCity
Funding LP located in Dallas, Texas.
4. Security interests related to financing statements filed with respect to
leased equipment.
5. Liabilities shown on the Schedule 1.1(b), Assumed Liabilities.
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SCHEDULE 3.1(a)(iii)
CERTIFICATE OF LIMITED PARTNERSHIP OF DRIVE
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SCHEDULE 4.5
REQUIRED CONSENTS
1. Consent of MBIA Insurance Corporation.
2. Consent of Financial Security Assurance Inc.
3. Consent of Noteholders for FirstCity Auto Receivables Trust 2000-1.
4. Consent of Lender for FCAR Receivables LLC/BOA Warehouse Facility.
5. Consent of Noteholders for N.A.F. Auto Receivables Trust 1997-1.
6. Consent of Noteholders for FirstCity Auto Receivables Trust 1998-1.
7. Consent of Noteholders for FirstCity Auto Receivables Trust 1998-2.
8. Consent of Noteholders for FirstCity Auto Receivables Trust 1998-3.
9. Consent of Noteholders for FirstCity Auto Receivables Trust 1999-1.
10. Consent of Noteholders for FirstCity Auto Receivables Trust 1999-2.
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SCHEDULE 4.8
MATERIAL CONTRACTS
Attached.
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SCHEDULE 4.10
CAPITALIZATION AND OWNERSHIP
None.
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EXHIBIT 1.1(a)-1
RETAIL CONTRACTS
Attached.
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