PROVIDE TO PURCHASER UP TO $4,000,000 OF WORKING
CAPITAL IN THE FORM OF A CAPITAL NOTE ON TERMS AND CONDITIONS SATISFACTORY TO
SELLERS AND WITH AN INTEREST RATE EQUAL TO THE PRIME RATE +3% TO THE EXTENT NOT
PROVIDED BY ANY OTHER FINANCING OBTAINED BY THE PURCHASER.
ASSET PURCHASE AGREEMENT - PAGE 11
SECTION 4.16
FIRSTCITY CORPORATE OVERHEAD EXPENSE. IN THE TWELVE MONTH
PERIOD FOLLOWING THE CLOSING DATE, THE MAXIMUM AMOUNT OF CORPORATE OVERHEAD
EXPENSES CHARGED BY FIRSTCITY TO PURCHASER SHALL NOT EXCEED $250,000, AND
FIRSTCITY SHALL NOT (I) INCREASE ITS CORPORATE OVERHEAD CHARGE TO PURCHASER BY
MORE THAN $100,000 IN ANY PERIOD OF TWELVE CONSECUTIVE CALENDAR MONTHS
THEREAFTER OR (II) DURING THE PERIOD COMMENCING ON THE CLOSING DATE THROUGH AND
INCLUDING THE FIFTH (5TH) ANNIVERSARY OF THE CLOSING DATE, REQUIRE PURCHASER OR
ANY OF ITS SUBSIDIARIES TO PAY OR ACCRUE MORE THAN $500,000 IN ANY
PERIOD OF
TWELVE CONSECUTIVE CALENDAR MONTHS IN CORPORATE OVERHEAD EXPENSE. DURING THE
PERIOD FROM THE EFFECTIVE DATE THROUGH AND INCLUDING THE CLOSING DATE, CORPORATE
OVERHEAD EXPENSES CHARGED BY FIRSTCITY TO THE PURCHASER AND ITS SUBSIDIARIES
SHALL NOT EXCEED $325,000 IN THE AGGREGATE.
SECTION 4.17
TRANSPORTATION COSTS; RISK OF LOSS.
(A)
SELLER HEREBY RELEASES PURCHASER FROM ANY AND ALL LIABILITY FOR
ANY LOSS, CLAIM, DAMAGE, COST OR EXPENSE (INCLUDING, WITHOUT LIMITATION,
ATTORNEYS' FEES) THAT MAY BE INCURRED BY SELLERS, OR ANY OTHER PERSON, AS A
RESULT OF, OR IN CONNECTION WITH PURCHASER ALLOWING THE FILES AND DOCUMENTS
EVIDENCING OR RELATING TO THE LOANS (COLLECTIVELY, "LOAN FILES") TO BE RETRIEVED
IN ACCORDANCE WITH THE APPLICABLE SERVICING AGREEMENTS.
(B)
ALL EXPENSES IN CONNECTION WITH TRANSPORTATION AND DELIVERY OF THE
LOAN FILES WILL BE THE SOLE RESPONSIBILITY OF SELLER. FROM AND AFTER THE CLOSING
DATE, SELLER BEARS THE RISK OF LOSS WITH RESPECT TO THE LOAN FILES.
SECTION 4.18
MISSING DOCUMENTS.
(A)
PURCHASER WILL NOT HAVE ANY OBLIGATION TO DELIVER TO SELLER ANY
LOAN FILES (OR PART THEREOF) THAT ARE LOST, MISSING OR OTHERWISE NOT IN THE
POSSESSION OF EITHER THE PURCHASER OR ANY SERVICER. WITHOUT RESTRICTING OR
LIMITING THE GENERALITY OF THE FOREGOING, SELLER ACKNOWLEDGES AND AGREES THAT
PURCHASER WILL HAVE NO OBLIGATION TO SECURE OR OBTAIN ANY ASSIGNMENT THAT
PREDATES THE ASSIGNMENT OF ANY LOAN TO PURCHASER THAT IS NOT CONTAINED IN THE
LOAN FILES. SELLER WILL HAVE THE SOLE RESPONSIBILITY FOR AND EXPENSE OF SECURING
ANY INTERVENING ASSIGNMENT THAT MAY BE MISSING FROM THE LOAN FILES FROM THE
APPROPRIATE SOURCE. THE FAILURE OF EITHER PURCHASER OR ANY SERVICER TO DELIVER
ANY LOAN FILES (INCLUDING, WITHOUT LIMITATION, ANY INTERVENING ASSIGNMENTS OTHER
THAN ASSIGNMENTS TO PURCHASER), ANY OTHER CONTENTS OF THE LOAN FILES THAT ARE
LOST, MISSING OR OTHERWISE NOT IN THE POSSESSION OF EITHER PURCHASER OR ANY
SERVICER, WILL NOT AFFECT SELLER'S OBLIGATIONS UNDER THIS AGREEMENT.
(B)
IN THE EVENT THAT ANY NOTE OR OTHER LOAN DOCUMENT IS LOST, MISSING
OR OTHERWISE NOT IN THE POSSESSION OF EITHER PURCHASER OR ANY SERVICER,
PURCHASER MAY ELECT EITHER TO PROVIDE AN EXECUTED ASSIGNMENT AND LOST INSTRUMENT
AFFIDAVIT