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FORM OF NOTE
THIS OBLIGATION HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND MAY NOT BE OFFERED
OR SOLD EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT.
March 30, 1999
$100,000,000
Reference is hereby made to that certain Note Purchase Agreement dated as
of March 30, 1999 (as amended, supplemented or otherwise modified in accordance
with the terms thereof and in effect from time to time, the "Note Purchase
Agreement") by and among FCAR RECEIVABLES LLC, a Texas limited liability company
(the "Issuer"), Enterprise Funding Corporation, a Delaware corporation (the
"Company") and NationsBank, N.A., as Agent (in such capacity, the "Agent") and
as a Bank Investor (in such capacity, a "Bank Investor") and to that certain
Security Agreement dated as of March 30, 1999 (as amended, supplemented or
otherwise modified and in effect from time to time, the "Security Agreement") by
and among the Issuer, the Company, FirstCity Funding Corporation, as Servicer,
CSC Logic/MSA LLP d/b/a Loan Servicing Enterprise, as Back-Up Servicer,
NationsBank, N.A., as Collateral Agent and MBIA Insurance Corporation. All
capitalized terms used but not defined herein shall have the meanings assigned
thereto in the Note Purchase Agreement or the Security Agreement.
FOR VALUE RECEIVED, the Issuer hereby promises to pay to the order of the
Agent, for the account of the Company or the Bank Investors, as applicable, at
the principal office of the Agent at Bank of America Corporate Center, 100 N.
Tryon Street, Charlotte, North Carolina 28255 a principal sum equal to ONE
HUNDRED MILLION DOLLARS ($100,000,000.00), in lawful money of the United States
of America and in immediately available funds.
The date and amount of each Funding extended by the Company or the Bank
Investors, as the case may be, to the Issuer under the Note Purchase Agreement,
and each payment of principal thereof, shall be recorded by the Company, or the
Bank Investors, as appropriate, on its books and, prior to any transfer of this
Note (or, at the discretion of the Company and/or the Bank Investor, as
appropriate, at any other time), endorsed by the Agent, on behalf of the Company
or the Bank Investor on the
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schedule attached hereto or any continuation thereof. Although the stated
principal amount of this Note is as stated above, this Note shall be enforceable
only with respect to the Issuer's obligation to pay the principal hereof only to
the extent of the unpaid principal amount of the Fundings outstanding under the
Note Purchase Agreement at the time such enforcement shall be sought.
Interest on the outstanding principal amount of this Note shall accrue at
the rate or rates necessary for the payment to the holder hereof, on the dates
provided for in the Security Agreement, of Carrying Costs payable to the holder
hereof on such date or dates, in all events interest hereunder in an amount
equal to the Interest Component of all Related Commercial Paper maturing on any
day shall be due and payable on such day. Interest due and payable hereunder
shall be payable in accordance with the priorities set forth in Section 5.1 of
the Security Agreement.
Principal will be due and payable as specified in and in accordance with
the priorities set forth in Section 5.1 of the Security Agreement.
The entire outstanding principal amount of this Note and accrued interest
thereon will be due and payable on the Remittance Date occurring in the calendar
month following the fourth calendar month in which the latest maturing
Receivable (determined as of the Termination Date) is scheduled to mature
(without regard to extensions subsequently granted on any Receivable by the
Issuer or any servicing agent).
After the occurrence of a Termination Event that has not been waived in
writing by the Insurance Provider and the Agent, the Insurance Provider or the
holder hereof may (with the prior written consent of the Insurance Provider,
subject to the terms of the Security Agreement) declare all amounts due
hereunder to be immediately due and payable.
The Issuer's obligation to make payments hereunder shall be a limited
recourse obligation of the Issuer, payable solely from the Collateral; provided,
however, that the foregoing shall not affect the right of the Agent on behalf of
the holder hereof to make a demand for payment under the Insurance Policy of
amounts due hereunder, in accordance with the provisions thereof.
The Issuer shall pay all costs of collection of any amount due hereunder
when incurred, including without limitation, reasonable attorney's fees and
expenses, and including all costs and expenses actually incurred in connection
with the pursuit by
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the holder of any of its rights or remedies referred to herein or in the
Security Agreement or the protection of or realization upon collateral, and all
such costs shall be payable in accordance with Section 5.1(a)(x) of the Security
Agreement.
The Issuer waives presentment, notice of dishonor, protest and other
notice or formality with respect to this Note.
Each holder of any interest in this Note (including any holder by
assignment) hereby agrees that it will not institute against, join any other
Person in instituting against, or knowingly or intentionally cooperate with or
encourage any other Person in instituting against, the Issuer, any bankruptcy or
insolvency proceeding so long as there shall not have elapsed one year plus one
day after payment in full of the Note and payment in full of all amounts due to
the Insurance Provider under the Transaction Documents.
THIS NOTE SHALL BE GOVERNED BY, AND INTERPRETED AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
FCAR RECEIVABLES LLC
By:
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Name:
Title: