EXHIBIT 10.65
SERVICING AGREEMENT
by and among
First Investors Auto Owner Trust 2000-A
as Issuer
Norwest Bank Minnesota, National Association
as Back-up Servicer and Indenture Trustee
First Investors Auto Investment Corp.
as Depositor
and
First Investors Servicing Corporation
as Servicer
Dated as of
January 1, 2000
SERVICING AGREEMENT
This Servicing Agreement ("Servicing Agreement") is made as of the 1st
day of January, 2000, by and among First Investors Auto Owner Trust 2000-A, a
Delaware business trust, as issuer (the "Issuer"), Norwest Bank Minnesota,
National Association, a national banking association, as back-up servicer (the
"Back-up Servicer") and as indenture trustee (the "Indenture Trustee"), First
Investors Auto Investment Corp., a Delaware corporation, as the depositor (the
"Depositor"), and First Investors Servicing Corporation, a Delaware corporation,
as servicer ("the Servicer"). Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed thereto in that certain Indenture of
even date herewith among the Issuer and the Indenture Trustee (hereafter as such
agreement may have been, or may from time to time be, amended, supplemented or
otherwise modified, the "Indenture").
PRELIMINARY STATEMENT
WHEREAS, pursuant to the Indenture, the Issuer has issued the Notes; and
WHEREAS, the Insurer has issued the Policy to provide for the full and
timely payment of all amounts of interest due on and principal (to the extent
the Note Balance exceeds the Pool Balance) of the Notes; and
WHEREAS, First Investors Financial Services, Inc. (the "Seller") has
acquired and will acquire certain Contracts secured by security interests in
Financed Vehicles; and
WHEREAS, pursuant to the Sale and Allocation Agreement of even date
herewith among the Seller, the Servicer, the Depositor, the Indenture Trustee,
and the Issuer (the "Sale and Allocation Agreement"), the Seller has absolutely
assigned Contracts to the Issuer; and
WHEREAS, pursuant to the Indenture, the Issuer has pledged, among other
things, the Contracts to the Indenture Trustee for the benefit of the
Noteholders and the Insurer; and
WHEREAS, pursuant to the terms of the Indenture, the Seller is obligated
to deliver or cause to be delivered to the Indenture Trustee, the documents to
be included in the Custodian Files, which are to be held by the Indenture
Trustee in its capacity as custodian pursuant to the terms of the Indenture; and
WHEREAS, the Issuer, the Indenture Trustee, the Back-up Servicer, the
Depositor and the Servicer desire to enter into this Servicing Agreement
pursuant to which the Servicer and the Back-up Servicer will perform the duties
as described herein.
NOW THEREFORE, in consideration of the covenants and conditions
contained in this Servicing Agreement, the parties, intending to be legally
bound, hereby agree as follows:
ARTICLE I.
DEFINITIONS
1.01. DEFINED TERMS. Capitalized and defined terms used but not defined
in this Servicing Agreement shall have the respective meanings assigned to them
in the Indenture or the Sale and Allocation Agreement, unless the context
otherwise requires, and the definitions of such terms are equally applicable
both to the singular and plural forms of such terms and to the masculine,
feminine and neuter genders of such terms.
"BACK-UP SERVICING FEE" shall have the meaning set forth in
Section 2.08(a) hereof.
"COLLECTION ACCOUNT DEPOSITORY" shall mean the depository for the
Collection Account established pursuant to Section 3.1(a) of the Sale and
Allocation Agreement.
"COLLECTION POLICY" shall mean the Servicer's statement of
policies and procedures for the collection of Contracts substantially in the
form of Exhibit D to the Sale and Allocation Agreement, as amended and restated
from time to time with the consent of the Insurer and in accordance with the
Transaction Documents.
"CUSTODIAN" shall mean the Indenture Trustee in its capacity as
custodian of the Custodian Files.
"CUSTODIAN FILES" shall have the meaning set forth in Section
2.13 hereof.
"EVENT OF SERVICING TERMINATION" shall have the meaning set forth
in Section 5.01 hereof.
"EXTENSION" shall have the meaning set forth in Section 2.02(a)
hereof.
"FIFSGI" shall mean First Investors Financial Services Group,
Inc., a Texas corporation.
"INSURANCE POLICIES" means insurance policies covering the
Financed Vehicles or the Obligors, including VSI Insurance.
"LOCKBOX BANK" means First Union National Bank, or such other
bank chosen by the Servicer from time to time, with the prior consent of the
Insurer (if no Insurer Default shall have occurred and be continuing) and the
Indenture Trustee.
"MONTHLY SERVICER REPORT" shall mean the monthly report provided
by the Servicer as contemplated by Section 2.02(c) hereof.
"SERVICER FILES" shall have the meaning set forth in Section 2.15
hereof.
2
"SUBSERVICER" shall have the meaning set forth in Section 2.01(g)
hereof.
"SUBSERVICING AGREEMENT" shall have the meaning set forth in
Section 2.01(g) hereof.
"SUCCESSOR SERVICER" shall mean the Back-up Servicer or any other
Eligible Servicer who succeeds to the authority, power, obligations and
responsibilities of the Servicer hereunder in accordance with the provisions of
Article V hereof.
"SUCCESSOR BACK-UP SERVICER" shall mean any Eligible Servicer who
succeeds to the authority, power, obligations and responsibilities of the
Back-up Servicer hereunder in accordance with the provisions of Article V
hereof.
ARTICLE II.
ADMINISTRATION AND SERVICING OF CONTRACTS
2.01. APPOINTMENT AND DUTIES OF THE BACK-UP SERVICER AND THE SERVICER.
(a) The Issuer hereby appoints Norwest Bank Minnesota, National
Association as Back-up Servicer and First Investors Servicing Corporation as
Servicer. The Back-up Servicer and the Servicer shall perform the services
required of each pursuant to the terms of this Servicing Agreement. In
performing their respective duties hereunder, the Back-up Servicer and Servicer
shall have full power and authority to do or cause to be done any and all things
in connection with such servicing and administration which either may deem
necessary or desirable, within the terms of this Servicing Agreement.
(b) As of the date of this Servicing Agreement, each of the
Back-up Servicer and the Servicer is, and shall remain, for so long as it is
acting as Back-up Servicer or Servicer, an Eligible Servicer.
Compensation and expense reimbursement payable to the Back-up
Servicer and Servicer under this Servicing Agreement shall be payable from the
amounts on deposit in the Collection Account pursuant to the priority of payment
set forth in Section 2.8 of the Indenture, and except as provided herein or in
the Indenture, none of the Issuer, the Insurer, the Indenture Trustee or the
Noteholders will have any liability to the Back-up Servicer or the Servicer with
respect thereto; provided, however, that the Issuer shall remain liable to the
extent of funds available pursuant to Section 2.8(a)(ix) of the Indenture (and
not from any other source) for any fees, expenses and indemnities due and
payable to the Servicer and any fees, expenses and indemnities due and payable
to the Back-up Servicer which have not been paid from the amounts on deposit in
the Collection Account.
(c) The Insurer, or if an Insurer Default has occurred and is
continuing, the Indenture Trustee or the Issuer, shall be entitled to terminate
the services of the Servicer or the Back-up Servicer under this Servicing
Agreement, upon the occurrence of an Event of Servicing
3
Termination, in each case in accordance with the terms and conditions hereof;
provided, however, that in the event of termination of the Servicer, the Back-up
Servicer shall act directly as Servicer unless a different Successor Servicer is
appointed in accordance herewith and, with prior written notice to the Rating
Agencies, the Insurer shall direct the Issuer to enter into a servicing
agreement with such Successor Servicer (that shall be an Eligible Servicer)
acceptable to the Rating Agencies and the Insurer and which will be bound by the
terms of such servicing agreement. In the event of termination of the Back-up
Servicer or the Successor Servicer, the Insurer, or if an Insurer Default has
occurred and is continuing, the Indenture Trustee, the Issuer, or the Indenture
Trustee at the direction of Noteholders evidencing not less than 51% of the Note
Balance shall appoint a Successor Servicer or a Successor Back-up Servicer, as
the case may be, and shall direct the Issuer to enter into a servicing agreement
with a Successor Back-up Servicer (that shall be an Eligible Servicer) or
Servicer (that shall be an Eligible Servicer), as the case may be, which will be
bound by the terms of such servicing agreement.
(d) Other than as set forth in Section 7.16 below, this Servicing
Agreement shall be deemed to be among the Back-up Servicer, the Indenture
Trustee, the Servicer, the Depositor and the Issuer; the Insurer and the
Noteholders shall not be deemed parties hereto and neither the Insurer, the
Indenture Trustee nor the Noteholders shall have any obligations, duties or
liabilities with respect to the Back-up Servicer or the Servicer except as set
forth herein and in the Indenture. The Issuer has agreed that the Indenture
Trustee, in its name or (to the extent required by law) in the name of the
Issuer, may (but is not required to) enforce all rights of the Issuer and all
obligations of the Servicer and the Back-up Servicer under, and shall be
entitled to all benefits of, this Servicing Agreement for and on behalf of the
Noteholders and the Insurer, whether or not the Issuer is in default thereunder.
The Servicer, in making collections of Contract payments pursuant to Section
2.02 hereof, shall be acting as agent for the Indenture Trustee, and shall be
deemed to be holding such funds in trust on behalf of, and as agent for, the
Indenture Trustee.
(e) In the event the Back-up Servicer shall for any reason no
longer be acting as such (including by reason of an Event of Servicing
Termination as specified in Section 5.01 hereof), the Successor Back-up Servicer
shall thereupon assume all of the rights and obligations of the outgoing Back-up
Servicer under this Servicing Agreement. In such event, the Successor Back-up
Servicer shall be deemed to have assumed all of the outgoing Back-up Servicer's
interest herein and to have replaced the outgoing Back-up Servicer as a party to
this Servicing Agreement to the same extent as if this Servicing Agreement had
been assigned to the Successor Back-up Servicer, except that the outgoing
Back-up Servicer shall not thereby be relieved of any liability or obligations
on its part under this Servicing Agreement arising prior to such replacement.
The outgoing Back-up Servicer shall, at the reasonable expense of the Issuer
pursuant to the priority of payment set forth in Section 2.8 of the Indenture,
deliver to the Successor Back-up Servicer all documents and records relating to
this Servicing Agreement and the Contracts then being serviced hereunder and an
accounting of amounts collected and held by it and otherwise use its best
efforts to effect the orderly and efficient transfer of this Servicing Agreement
to the Successor Back-up Servicer. Compensation and expense reimbursement of the
outgoing Back-up Servicer shall be payable through the date that the outgoing
Back-up Servicer ceases to render services.
4
(f) The Issuer shall, at its own expense, duly and punctually
perform and observe its obligations to the Back-up Servicer and the Servicer
under this Servicing Agreement in accordance with the terms hereof. In addition,
promptly following a request from the Indenture Trustee to do so and at the
Issuer's own expense, the Issuer shall take all such lawful action as the
Indenture Trustee (which shall so request if directed by Noteholders evidencing
not less than 51% of the Note Balance, with the consent of the Insurer, to do
so) may request to compel or secure the performance and observance by the
Back-up Servicer and the Servicer of each of its respective obligations to the
Issuer under or in connection with this Servicing Agreement, in accordance with
the terms hereof, and in effecting such request shall exercise any and all
rights, remedies, powers and privileges lawfully available to the Issuer under
or in connection with this Servicing Agreement to the extent and in the manner
directed by the Indenture Trustee, including, without limitation, the
transmission of notices of default on the part of the Back-up Servicer or the
Servicer hereunder and the institution of legal or administrative actions or
proceedings to compel or secure performance by the Back-up Servicer or the
Servicer of its respective obligations under this Servicing Agreement.
(g) The Servicer or the Back-up Servicer, if applicable, may
enter into one or more subservicing agreements (each, a "Subservicing
Agreement") with one or more Subservicers (each, a "Subservicer") for the
servicing and administration of certain of the Contracts; provided that, unless
the Insurer otherwise agrees in writing, the only servicing functions that may
be performed by Subservicers of the initial Servicer are (i) sending "welcome
letters" to new Obligors, (ii) sending payment coupons to each Obligor on a
monthly basis, (iii) receipt and posting of all payments received with respect
to the Contracts, (iv) tracking of Obligor compliance with physical damage
insurance, (v) repossessing Financed Vehicles, (vi) preparing Financed Vehicles
for sale and representing the Servicer throughout the related vehicle auction
process and (vii) other functions pursuant to any other Subservicing Agreement
approved in writing by the Insurer; provided, that entering into a Subservicing
Agreement shall not relieve the Servicer or the Back-up Servicer from any of
their respective obligations hereunder. References in this Servicing Agreement
to actions taken or to be taken by the Servicer in servicing the Contracts
include actions taken or to be taken by a Subservicer on behalf of the Servicer.
Each Subservicing Agreement will be upon such terms and conditions as are not
inconsistent with this Servicing Agreement and as the Servicer and the
Subservicer have agreed. The Servicer and a Subservicer may enter into
amendments thereto; provided, however, that any such amendments shall be
consistent with and not violate the provisions of this Servicing Agreement.
(h) The Back-up Servicer may be removed by the Insurer or, if an
Insurer Default has occurred and is continuing, by the Indenture Trustee, the
Issuer, or the Indenture Trustee at the direction of the Noteholders evidencing
not less than 51% of the Note Balance, with or without cause upon thirty days'
written notice to the Back-up Servicer; provided, however, that (A) such removal
may be made immediately and shall not require notice if: (i) the Back-up
Servicer shall consent to the appointment of a conservator, receiver or
liquidator in any insolvency, readjustment of
5
debt, marshalling of assets and liabilities, or similar proceedings of or
relating to the Back-up Servicer or relating to all or substantially all of its
property; or (ii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities, or similar proceedings, or for the
winding up or liquidation of its affairs shall have been entered against the
Back-up Servicer, and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or (iii) the Back-up Servicer
shall become insolvent or admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable debtor relief laws, make an assignment for the benefit of its
creditors or voluntarily suspend payment of its obligations; or (iv) a petition
is filed against the Back-up Servicer seeking relief under any applicable debtor
relief laws of the United States or any state or other competent jurisdiction,
and such petition, order, judgment or decree shall have remained in force
undischarged or unstayed for a period of 60 days after its entry; and (B) such
removal shall not be effective unless and until a Successor Back-up Servicer is
appointed by the Insurer or, if an Insurer Default has occurred and is
continuing, by the Indenture Trustee at the direction of Noteholders evidencing
not less than 51% of the Note Balance; provided, that the Back-up Servicer may
petition a court of competent jurisdiction to appoint a Successor Back-up
Servicer if one is not chosen within 60 days.
2.02. COLLECTION OF CONTRACT PAYMENTS; DEFAULTED CONTRACTS; REPORTING
OBLIGATIONS.
(a) The Servicer shall be responsible for collection of payments
called for under the terms and provisions of the Contracts, as and when the same
shall become due. The Servicer, consistent with the standard of care set forth
in Section 2.18, shall service, manage, administer and make collections on the
Contracts on behalf of the Issuer and shall have full power and authority,
acting alone and/or through Subservicers as provided in Section 2.01(g), to do
any and all things which it may deem necessary or desirable in connection
therewith which are consistent with this Servicing Agreement. The Servicer may
extend the then-current maturity date of any Contract by one month (an
"Extension"); provided however, that (i) no Extension may be granted with
respect to any Contract unless at least six scheduled payments have been
received with respect to such Contract; (ii) Extensions may be granted in the
aggregate for no more than one month for each twelve months of the original term
of a Contract, and (iii) Extensions may be granted no more than twice for
periods of one month each during any consecutive 12-month period. In the event
that an Extension causes a Contract to remain outstanding on the Final Note
Payment Date, the Servicer shall purchase such Contract as of the last day of
the month preceding the Final Note Payment Date. In consideration of the
repurchase of such Contract hereunder, the Servicer shall remit the Purchase
Amount of such Contract in the manner specified in Section 3.4 of the Sale and
Allocation Agreement. The sole remedy of the Issuer, the Indenture Trustee, or
the Noteholders for any Extension that causes a Contract to remain outstanding
on the Final Note Payment Date shall be the repurchase thereof as provided
herein. The Servicer may in its discretion waive any late payment charge or any
other fees that may be collected in the ordinary course of servicing a Contract.
In no event shall the principal balance of a Contract be reduced, except in
connection with a settlement in the event the Contract becomes a Defaulted
Contract. The Servicer shall also enforce all rights of the Issuer under the
Originator Agreements including, but not limited to, the right to require an
Originator to repurchase Contracts for breaches of representations and
warranties made by the respective Originators.
(b) If the full amount of a scheduled payment due under a
Contract is not timely received, the Servicer shall make reasonable and
customary efforts to collect such Contract
6
in accordance with this Servicing Agreement and the procedures set forth in the
Collection Policy. The Servicer shall use its best efforts, consistent with the
standard of care set forth in Section 2.18 hereof, to collect funds on a
Defaulted Contract; such collections shall be deposited into the Collection
Account no later than two Business Days following receipt thereof.
(c) The Servicer shall provide monthly reports substantially in
the form of Exhibit A-1 hereto, each under a certificate substantially in the
form of Exhibit A-2 hereto, to the Indenture Trustee. The Servicer shall also
provide, by mail and facsimile transmission, copies of such reports and
certificates to the Back-up Servicer, the Insurer, the Rating Agencies and any
other Persons identified on a list provided to the Servicer by the Issuer, as
such list may be amended from time to time, regarding (i) payments received from
or on behalf of the Obligors and deposited to the Collection Account (identified
in Section 3.03 hereof) representing collections with respect to the Contracts,
(ii) other amounts received with respect to the Contracts, including Liquidation
Proceeds or the proceeds of repurchases under the Sale and Allocation Agreement,
(iii) other matters relating to the Contracts including delinquencies,
repossessions and filing and payment of claims under Insurance Policies, (iv)
financial information used to calculate whether certain Events of Default have
occurred, and (v) other items reflected on Exhibit A-1. Such reports shall be
delivered to the parties specified above no later than the Determination Date
related to each Collection Period.
(d) The Back-up Servicer shall provide monthly reports to the
Indenture Trustee, and the Indenture Trustee shall provide copies of such
reports to the Rating Agencies, the Insurer, the Issuer and any other Persons
identified on a list provided to the Back-up Servicer by the Issuer, as such
list may be amended from time to time, substantially in the form of Exhibit B
hereto. Such report shall be dated as of the Determination Date for each Payment
Date and delivered to the Indenture Trustee on or before such Payment Date.
(e) The Servicer shall, upon request, promptly, but no later than
two Business Days after receipt of a request provide, or cause to be provided,
to the Back-up Servicer and the Insurer copies of all monthly bank statements,
notices, reports or other documents received from the Indenture Trustee and from
the Collection Account Depository regarding funds held in or transferred to or
from all applicable accounts.
(f) No later than the Determination Date related to each
Collection Period, the Servicer shall forward to the Back-up Servicer, via
reputable overnight courier or electronic transmission, a computer diskette in a
format mutually acceptable to the Servicer and the Back-up Servicer, of its
computerized records reflecting (i) all collections received during such
Collection Period with respect to the Contracts, (ii) the Pool Balance as of the
last day of the Collection Period, (iii) information as of the last day of such
Collection Period regarding the number of Defaulted Contracts, (iv) the number
of repossessed Financed Vehicles and the number of sales of repossessed Financed
Vehicles as of the last day of such Collection Period and (v) all other
information necessary for the Back-up Servicer to perform its duties under
Section 2.23. Promptly upon discovery by the Back-up Servicer or receipt by the
Back-up Servicer of notice of an Event of Servicing Termination with respect to
the Servicer, the Back-up Servicer shall input
7
such information onto its computer system so that such information is
immediately available to the Back-up Servicer.
2.03. REALIZATION UPON CONTRACTS.
(a) Unless otherwise contemplated by the Collection Policy, in
the event a Contract becomes or is reasonably anticipated to become a Defaulted
Contract, the Servicer, itself or through the use of independent contractors or
agents shall, consistent with the standard of care set forth in Section 2.18,
repossess or otherwise convert the ownership of the Financed Vehicle securing
such Contract. In accordance with the priority of payment set forth in Section
2.8(ix) of the Indenture, all costs and expenses incurred by the Servicer in
connection with the repossession of the Financed Vehicles securing such
Contracts shall be reimbursed to the Servicer from the Collection Account on the
Payment Date relating to the Collection Period in which the Servicer delivered
to the Indenture Trustee an itemized statement of such costs and expenses.
Notwithstanding the foregoing and consistent with the terms of this Servicing
Agreement, the Servicer shall not be obligated to repossess or take any action
with respect to a Defaulted Contract if, in its reasonable judgment consistent
with the servicing standards specified in Section 2.18, the Liquidation Proceeds
are expected to be a negative number.
(b) The Servicer, itself or through the use of independent
contractors or agents to the extent allowed by Section 2.01(g), shall follow
practices consistent with the standard of care set forth in Section 2.18,
including the Collection Policy, in its servicing of automotive contracts, which
may include selling the Financed Vehicle, or requesting a Subservicer to sell
the Financed Vehicle, at public or private sale; provided, however, that the
Servicer, itself or through the use of independent contractors or agents to the
extent allowed by Section 2.01(g), shall, in accordance with its Collection
Policy, maximize the sales proceeds for each repossessed Financed Vehicle. The
foregoing shall be subject to the provision that, in any case in which the
Financed Vehicle shall have suffered damage, the Servicer shall not expend funds
for the repair or the repossession of such Financed Vehicle unless the Servicer
shall determine in its discretion that such repair or repossession should
increase the Liquidation Proceeds.
2.04. PHYSICAL DAMAGE INSURANCE.
(a) The Servicer, itself or through the use of independent
contractors or agents to the extent allowed by Section 2.01(g), in accordance
with the standard of care set forth in Section 2.18, shall, upon receipt of
notice that an Obligor's physical damage insurance covering the Financed Vehicle
has lapsed or is otherwise not in force, send written notice to such Obligor
stating that such Obligor is required to maintain physical damage insurance
covering the Financed Vehicle throughout the term of the Contract.
(b) In the event of any physical loss or damage to a Financed
Vehicle from any cause, whether through accidental means or otherwise, the
Servicer shall have no obligation to cause the affected Financed Vehicle to be
restored or repaired. However, the Servicer shall comply with the provisions of
any insurance policy or policies directly or indirectly related to any physical
loss or damage to a Financed Vehicle.
8
(c) The Servicer will administer the filing of claims under the
Insurance Policies as described under Section 2.12 hereof.
2.05. MAINTENANCE OF SECURITY INTERESTS IN FINANCED VEHICLES AND
CONTRACTS.
(a) The Issuer hereby directs the Servicer, and the Servicer
agrees, to (i) take or cause to be taken such steps as are necessary, in
accordance with the standard of care set forth in Section 2.18, to maintain
perfection of the security interest created by any Contract covering a Financed
Vehicle which has been relocated in such a manner as to require such steps, and
(ii) within two Business Days of its receipt thereof forward to the Custodian,
on behalf of the Issuer, via reputable overnight courier, any certificate of
title to a Financed Vehicle received by the Servicer for any reason with respect
to a Financed Vehicle relating to a Contract serviced hereunder.
(b) The Servicer shall, at the direction of the Issuer, the
Insurer or the Indenture Trustee (which shall so direct if directed by
Noteholders evidencing not less than 51% of the Note Balance to do so), take any
action necessary to preserve and protect the security interests of the Issuer
and the Indenture Trustee in the Contracts, including any action specified in
any opinion of counsel delivered to the Servicer.
2.06. COVENANTS OF SERVICER; NOTICES.
9
(a) The Servicer shall (i) not release any Financed Vehicle
securing any Contract from the security interest granted therein by such
Contract in whole or in part except in the event of payment in full by the
Obligor thereunder or upon transfer of the Financed Vehicle to a successor
purchaser following repossession by the Servicer or a Subservicer, (ii) not
impair the rights of the Issuer, the Noteholders, the Insurer or the Indenture
Trustee in the Contracts, (iii) not increase the number of scheduled payments
due under a Contract except as permitted herein, (iv) prior to the payment in
full, not sell, pledge, assign, or transfer to any other Person, or grant,
create, incur, assume, or suffer to exist any Lien on any Contract pledged to
the Indenture Trustee or any interest therein, (v) immediately notify the
Issuer, the Back-up Servicer, the Insurer and the Indenture Trustee of the
existence of any Lien on any Contract (other than the Lien of the Indenture
Trustee) if the Servicer has actual knowledge thereof, (vi) defend the right,
title, and interest of the Issuer, the Noteholders, the Insurer and the
Indenture Trustee in, to and under the Contracts pledged to the Indenture
Trustee, against all claims of third parties claiming through or under the
Servicer, (vii) deposit into Collection Account or cause to be deposited into
the lockbox account maintained at the Lockbox Bank all payments received by the
Servicer with respect to the Contracts in accordance with this Servicing
Agreement, (viii) comply in all respects with the terms and conditions of this
Servicing Agreement relating to the obligation of the Issuer to remove Contracts
from the Collateral pursuant to the Indenture, and the obligation of the Seller
to reacquire the Contracts from the Issuer pursuant to the Sale and Allocation
Agreement, (ix) promptly notify the Issuer, the Back-up Servicer, the Insurer
and the Indenture Trustee of the occurrence of any Event of Servicing
Termination and any breach by the Servicer of any of its covenants or
representations and warranties contained herein, (x) promptly notify the Issuer,
the Insurer, the Back-up Servicer and the Indenture Trustee of the occurrence of
any event which, to the knowledge of the Servicer, would require that the Issuer
make or cause to be made any filings, reports, notices, or applications or seek
any consents or authorizations from any and all government agencies, tribunals,
or authorities in accordance with the UCC and any state vehicle license or
registration authority as may be necessary or advisable to create, maintain, and
protect a first-priority security interest of the Indenture Trustee in, to, and
on the Financed Vehicles and a first-priority security interest of the Indenture
Trustee in, to, and on the Contracts pledged to the Indenture Trustee, and (xi)
take all reasonable action necessary to maximize the returns pursuant to the
Insurance Policies.
(b) The Servicer shall, within three Business Days of its receipt
thereof, respond to reasonable written directions or written requests for
information that the Issuer, the Indenture Trustee, the Insurer, or the
Indenture Trustee at the direction of Noteholders evidencing not less than 51%
of the Note Balance might have with respect to the administration of the
Contracts.
(c) The Servicer will promptly advise the Issuer, the Insurer,
the Back-up Servicer and the Indenture Trustee of any inquiry received from an
Obligor which requires the consent of the Issuer or the Indenture Trustee.
Inquiries requiring consent of the Issuer or the Indenture Trustee may include,
but are not limited to, inquiries about settlement of any unasserted claim or
defense, or compromise of any amount an Obligor owes.
10
(d) The Servicer will not make any material change to the
Collection Policy with respect to the Contracts without the consent of the
Insurer (unless an Insurer Default shall have occurred and be continuing), which
consent shall not be unreasonably withheld; and if an Insurer Default shall have
occurred and be continuing, the Servicer will not make any material change to
the Collection Policy with respect to the Contracts if such change would have a
materal adverse effect on the Contracts.
2.07. REPURCHASE OF CONTRACTS BY SELLER UPON BREACH. The Servicer shall
inform the Issuer, the Insurer, the Indenture Trustee and the Back-up Servicer
promptly, in writing, upon the discovery of the occurrence of any event which
would require the Seller to repurchase a Contract under Section 2.3 of the Sale
and Allocation Agreement; provided, however, that the Servicer shall have no
duty to investigate or determine the existence of any breach except as specified
herein. Unless waived by the Insurer, the Servicer shall deliver to the Issuer a
written demand to cause the Seller to reacquire the affected Contract as
provided in the Sale and Allocation Agreement. The sole remedy of the Issuer,
the Indenture Trustee, the Insurer (except as otherwise provided in the
Insurance Agreement), or the Noteholders against the Seller with respect to any
Contract shall be the repurchase thereof as provided in the Sale and Allocation
Agreement.
2.08. SERVICING FEE; BACK-UP SERVICING FEE.
(a) Pursuant to the Indenture, the Issuer has agreed to cause the
Indenture Trustee to pay out of monthly collections with respect to the
Contracts to the Back-up Servicer a monthly servicing fee ("Back-up Servicing
Fee") and to the Servicer the Servicing Fee with respect to the Contracts
serviced under this Servicing Agreement; provided, however, that the Issuer
hereby agrees not to amend or consent to any amendment of any provision of the
Indenture relating to compensation of the Back-up Servicer or the Servicer
without the prior written consent of such Person and the Insurer.
(b) The Back-up Servicing Fee with respect to each Collection
Period shall be equal to the greater of (A) the quotient obtained by dividing
(i) 0.03% of the Note Balance as of the beginning of such Collection Period, by
(ii) 12 and (B) $1,000. The Back-Up Servicer shall also be entitled to
reimbursement of its conversion costs and other transition expenses associated
herewith pursuant to Section 2.8(a)(i) of the Indenture, up to the limit set
forth therein, and any excess pursuant to Section 2.8(a)(ix) of the Indenture.
The Back-up Servicing Fee with respect to a Collection Period shall be due on
the succeeding Payment Date. In the event the initial Back-up Servicer becomes a
Successor Servicer pursuant to this Servicing Agreement, the Back-up Servicer
shall be paid a fee not to exceed the greater of (i) the Servicing Fee or (ii)
the current market rate at the time for servicing Contracts similar in nature to
the Contracts. Such current market rate shall be determined by taking the lowest
of three servicing bids obtained by the Back-up Servicer from third party
servicers selected by the Back-up Servicer and approved by the Insurer.
(c) The Servicing Fee with respect to each Collection Period
shall be equal to the quotient obtained by dividing (i) the Servicing Fee Rate
times the Note Balance as of the
11
beginning of such Collection Period, by (ii) 12. The Servicing Fee with respect
to a Collection Period shall be due on the succeeding Payment Date. In the event
this Servicing Agreement is terminated on a date other than the last day of a
Collection Period or a Contract is designated to be no longer outstanding for
purposes of this Servicing Agreement, then the Servicing Fee for such period or
with respect to such Contract, as the case may be, shall be determined on a pro
rata basis.
2.09. ANNUAL STATEMENT AS TO COMPLIANCE. The Servicer shall deliver to
the Indenture Trustee, and the Indenture Trustee shall deliver to the Issuer,
the Back-up Servicer, the Insurer, the Rating Agencies and any Persons
identified on a list provided to the Servicer by the Issuer, as such list may be
amended from time to time, on or before July 31 of each year beginning July 31,
2000, an Officer's Certificate, dated effective as of the preceding April 30,
stating that (i) a review of the activities of the Servicer during the preceding
12-month period (or such shorter period, as is applicable) and of its
performance under this Servicing Agreement during such period has been made
under such officer's supervision, (ii) based on such review, the Servicer has
fulfilled all its obligations under this Servicing Agreement throughout such
period, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof and the remedies therefor being pursued; and (iii) to the
best of such officer's knowledge, each Subservicer has fulfilled its obligations
under its Subservicing Agreement in all material respects, or if there has been
a material default in the fulfillment of such obligations, specifying such
default known to such officers and the nature and status thereof. This Section
shall not apply to the Back-up Servicer acting as Servicer.
2.10. FINANCIAL STATEMENTS; ANNUAL SERVICING REVIEW.
(a) The Servicer, shall deliver, in duplicate, to the Rating
Agencies, the Insurer, the Back-up Servicer, the Indenture Trustee and any other
Persons identified on a list provided to the Servicer by the Issuer, as such
list may be amended from time to time:
(i) as soon as available, but in no event later than 45
days after the end of each fiscal quarter of FIFSGI (commencing with the quarter
ending July 31, 2000), an unaudited consolidated balance sheet and income
statement (prepared in accordance with generally accepted accounting principles
applied on a consistent basis, and subject to year end adjustments) for FIFSGI
covering the preceding quarter, in each case certified by the chief financial
officer of FIFSGI to be true, accurate and complete copies of such financial
statements; and
(ii) on or before ninety (90) days after the end of each
fiscal year of FIFSGI (commencing with the fiscal year ending April 30, 2000)
the consolidated financial statements of FIFSGI containing a report of a firm of
independent public accountants selected by FIFSGI to the effect that such firm
has examined the books and records of FIFSGI and that, on the basis of such
examination conducted in compliance with generally accepted audit standards,
such financial statements accurately reflect the financial condition of FIFSGI,
in each case certified by the chief financial officer of FIFSGI, to be true,
accurate and complete copies of such financial statements.
12
(b) The Servicer will cause the same firm of independent public
accountants which prepared the audited financial statements pursuant to
paragraph (a)(ii) of this Section to deliver to the Rating Agencies, the
Insurer, the Back-up Servicer, the Indenture Trustee and any Persons identified
on a list provided to the Servicer, as such list may be amended from time to
time, upon receipt of such covenants and representations from such Persons as
the independent public accountants may require, and as soon as practicable, but
in any event within 120 days after the end of each fiscal year, an annual review
of the Servicer's procedures and operations in form and substance reasonably
satisfactory to the Insurer, prepared by such firm of independent public
accountants, dated as of April 30 of each year beginning 2000 and substantially
stating to the effect that (i) such accountants have examined the accounts and
records of the Servicer relating to the Collateral and the conveyed property in
all similar asset-based financing transactions sponsored by the Issuer or an
affiliate thereof (which records shall be described in one or more schedules to
such statement), (ii) such firm has compared the information contained in
certain Monthly Servicer Reports (and similar reports for other similar
asset-based financing transactions sponsored by the Issuer or an affiliate
thereof) delivered in the relevant period with information contained in the
accounts and records or other relevant source documents for such period, and
(iii) on the basis of the procedures performed, whether the information examined
and contained in such Monthly Servicer Reports (and similar reports for such
other similar asset-based financing transactions) delivered on the relevant
period reconciles and agrees with the information contained in the accounts and
records or other relevant source documents except for such exceptions as such
independent public accountants believe to be immaterial and such other
exceptions as shall be set forth in such statement.
2.11. COSTS AND EXPENSES.
(a) Except as set forth in Section 2.11(b) below, all costs and
expenses incurred by the Servicer in carrying out its duties hereunder, fees and
expenses of independent public accountants with respect to preparation of the
financial statements and reports described in Section 2.10(b) and (c) and all
other fees and expenses (including all fees and expenses arising as a result of
the occurrence of a Re-Liening Trigger) not expressly permitted pursuant to the
priorities of Section 2.8 of the Indenture to be for the account of the Issuer,
shall be paid or caused to be paid by the Servicer out of the compensation to be
paid to the Servicer pursuant to Section 2.08.
(b) During the term of this Servicing Agreement, the Servicer
shall be reimbursed pursuant to Section 2.8(a)(ix) of the Indenture for actual
out-of-pocket costs and expenses incurred in connection with the sale or other
disposal of a Financed Vehicle or collection of amounts due with respect to a
Contract including, but not limited to, the following (to the extent such cost
or expense relates to the sale or other disposal or collection of amounts due
with respect to a Contract or a Financed Vehicle):
(i) Any compensation paid to outside legal counsel
retained to protect the interests of the Issuer, the Indenture Trustee, the
Insurer or the Noteholders in the assets
13
administered under this Servicing Agreement as the Servicer deems necessary in
accordance with its normal procedures;
(ii) Any compensation paid to independent repossessors,
auctioneers or appraisers and any direct out of pocket expenses arising from or
related to realization of the Contracts administered under this Servicing
Agreement;
(iii) Any sales, franchise, income, excise, personal
property or other taxes arising from or related to any Contracts administered
under this Servicing Agreement;
(iv) Any parking or other fees, insurance, title or
similar fees arising from or related to any Contracts administered under this
Servicing Agreement;
(v) Any expenses for special forms and materials, freight,
tapes, communications, lock-box and other bank service charges, and other
expenses approved by the Issuer; and
(vi) Any expenses and fees paid to outside accountants in
connection with the procedures required to be performed pursuant to Section
2.10(b) hereof.
2.12. RESPONSIBILITY FOR INSURANCE POLICIES; PROCESSING OF CLAIMS UNDER
INSURANCE POLICIES; DAILY RECORDS AND REPORTS.
(a) The Servicer, on behalf of the Issuer, will administer and
enforce all rights and responsibilities of the holder of the Contracts provided
for in the Insurance Policies relating to the Contracts.
(b) The Servicer will administer the filings of claims under the
Insurance Policies by filing the appropriate notices related to claims,
including initial notices of loss, as well as claims with the respective
carriers or their authorized agents all in accordance with the terms of the
Insurance Policies. The Servicer shall use reasonable efforts to file such
claims on a timely basis after obtaining knowledge of the events giving rise to
such claims, subject to the servicing standard set forth in Section 2.18 hereof.
The Servicer will utilize such notices, claim forms and claim procedures as are
required by the respective insurance carriers.
The Servicer shall not be required to pay any premiums or, other
than administering the filing of claims and performing reporting requirements
specified in the Insurance Policies in connection with filing such claims,
perform any obligations of the named insured under such Insurance Policies. The
Servicer shall not be responsible to the Issuer, the Insurer, the Noteholders or
the Indenture Trustee (i) for any act or omission to act done in order to comply
with the requirements or satisfy any provisions of the Insurance Policies or
(ii) for any act, absent willful misconduct or negligence, or omission to act
done in compliance with this Servicing Agreement. In the case of any
inconsistency between this Servicing Agreement and the terms of any Insurance
Policy, the Servicer shall comply with the latter. A copy of any claim shall be
furnished to the Insurer upon the Insurer's request.
14
2.13. DELIVERY OF DOCUMENTS TO INDENTURE TRUSTEE. The Servicer shall
deliver or cause to be delivered all of the following documents with respect to
the Contracts in its possession to the Indenture Trustee via reputable overnight
courier service for receipt by the Indenture Trustee within two (2) Business
Days preceding the Closing Date:
(a) the sole original counterpart of the retail installment
contract or promissory note and security agreement evidencing each such Contract
and any and all amendments thereto; and
(b) (i) the original certificate of title or copies of
correspondence to the appropriate State title registration agency, and all
enclosures thereto, for issuance of the original certificate of title or (ii) if
the appropriate State title registration agency issues a letter or other form of
evidence of lien in lieu of a certificate of title, the original lien entry
letter or form or copies of correspondence to such State title registration
agency, and all enclosures thereto, for issuance of the original lien entry
letter or form (the items in (a) - (b) are collectively referred to as the
"Custodian Files").
While in its possession, the Servicer shall hold the Custodian
Files in trust on behalf of the Indenture Trustee.
2.14. MAINTENANCE OF COPIES OF DOCUMENTS BY THE SERVICER.
(a) The Servicer shall maintain legible copies (in electronic or
hard-copy form, in the discretion of the Servicer) or originals of the following
documents in its files with respect to each Contract and the Financed Vehicle
related thereto:
(i) application of the Obligor for credit;
(ii) a copy (but not the original) of the retail
installment contract or promissory note and security agreement and any
amendments thereto, provided, however, that the Servicer shall deliver any
original amendments to the retail installment contract or promissory note and
security agreement to the Indenture Trustee immediately following execution
thereof;
(iii) a copy (but not the original) of a certificate of
title with a lien notation or an application therefor;
(iv) a certificate of insurance or application therefor
with respect to the Financed Vehicle securing the Contract;
(v) a copy of the proof of income and references, credit
report and approval sheet utilized by the Seller in the underwriting of the
Contract;
(vi) the invoice for the Financed Vehicle (in the case of
a new vehicle) or the bookout sheet (in the case of a used vehicle);
15
(vii) Obligor's order for the Financed Vehicle, together
with proof (if any) of down payment;
(viii) a copy of the service contract, if any, on the
Financed Vehicle;
(ix) a copy of the credit life insurance policy, if any,
and the credit disability insurance policy, if any, on the Obligor relating to
the Financed Vehicle and a copy of a certificate evidencing physical damage
insurance covering the related Financed Vehicle, if any; and
(x) such other documents as the Servicer may reasonably
request in order to accomplish its duties under this Servicing Agreement.
(b) The Servicer shall keep books and records, satisfactory to
the Insurer, pertaining to each Contract and shall make periodic reports in
accordance with this Servicing Agreement. Such records may not be destroyed or
otherwise disposed of except as provided herein and as allowed by applicable
laws, regulations or decrees. All documents, whether developed or originated by
the Servicer or not, reasonably required to document or to properly administer
any loan shall remain at all times the property of the Issuer and shall be held
in trust by the Servicer. The Servicer shall not acquire any property rights
with respect to such records, and shall not have the right to possession of them
except as subject to the conditions stated in this Servicing Agreement. The
Servicer shall bear the entire cost of restoration in the event any Servicer
Files (as defined below) shall become damaged, lost or destroyed while in the
Servicer's possession or control.
2.15. POSSESSION OF SERVICER FILES. Unless otherwise specified herein,
the Servicer shall maintain physical possession of the instruments and documents
listed in paragraph 2.14(a) above; such other instruments or documents that
modify or supplement the terms or conditions of any of the foregoing; and, all
other instruments, documents, correspondence and memoranda generated by or
coming into the possession of the Servicer (including, but not limited to,
insurance premium receipts, ledger sheets, payment records, insurance claim
files, correspondence and current and historical computerized data files) that
are required to document or service any Contract. Collectively, all of the
documents described in this Section 2.15 with respect to a Contract are referred
to as the "Servicer Files". The Servicer hereby agrees that the computer files
and other physical records of the Contracts maintained by the Servicer will bear
an indication reflecting that the Contracts are owned by the Issuer and pledged
to the Indenture Trustee for the benefit of the Noteholders and the Insurer and
that all Servicer Files shall remain the property of the Issuer and shall be
held in trust by the Servicer. The Servicer shall respond to all third party
inquiries concerning ownership of the Contracts by indicating that the Contracts
have been assigned by the Seller to the Issuer and pledged to the Indenture
Trustee for the benefit of the Noteholders and the Insurer.
2.16. PROCESSING OF INFORMATION. Information with respect to each
Contract is to be recorded into the Servicer's loan management and accounting
system.
16
2.17. WARRANTIES AND REPRESENTATIONS WITH RESPECT TO COMPLIANCE WITH LAW
AND ENFORCEMENT.
(a) The Issuer hereby represents to the Servicer, based on
certain representations the Seller has made to the Issuer concerning the
Contracts in the Sale and Allocation Agreement, and on which representations the
Issuer has relied in acquiring the Contracts and with respect to the pledge of
the Contracts to the Indenture Trustee, that each Contract and the sale of the
related Financed Vehicle complied at the time it was originated or made and on
the Cutoff Date, as the case may be, does comply in all material respects with
all requirements of applicable federal, state and local laws, and regulations
thereunder.
(b) The Servicer warrants, represents and covenants that in the
event that the Servicer realizes upon any Contract, the methods utilized by the
Servicer to realize upon such Contract or otherwise enforce any provisions of
the Contract, will not subject the Servicer, the Issuer, the Noteholders, the
Insurer or the Indenture Trustee to liability under any federal, state or local
law, and that such enforcement by the Servicer will be conducted in accordance
with the provisions of this Servicing Agreement and the standard of care set
forth in Section 2.18 hereof including the Collection Policy.
2.18. STANDARD OF CARE. In performing its duties and obligations
hereunder and in administering and enforcing the Insurance Policies relating to
the Contracts pursuant to this Servicing Agreement, the Servicer will comply
with all applicable state and federal laws and shall service and administer the
Contracts by employing such procedures (including collection procedures) and
degree of care, in each case consistent with prudent industry standards, as are
customarily employed by the Servicer in servicing and administering motor
vehicle retail installment sales contracts and notes owned or serviced by the
Servicer comparable to the Contracts. In performing such duties, so long as
First Investors Servicing Corporation is the Servicer (i) it shall comply with
the Collection Policy, and (ii) it shall not make any material amendment to such
Collection Policy without the prior written consent of the Insurer (provided
that no Insurer Default shall have occurred and be continuing) which consent
shall not be unreasonably withheld; provided, however, that notwithstanding the
foregoing, the Servicer shall not, except pursuant to a judicial order from a
court of competent jurisdiction, or as otherwise required by applicable law or
regulation, release or waive the right to collect the unpaid balance on any
Contract. In performing its duties and obligations hereunder, the Servicer shall
comply with all applicable federal and state laws and regulations, shall
maintain all state and federal licenses and franchises necessary for it to
perform its servicing responsibilities hereunder, and shall not impair the
rights of the Issuer, the Insurer or the Indenture Trustee on behalf of the
Noteholders in the Collateral.
2.19. RECORDS. The Servicer shall maintain or cause to be maintained
such books of account and other records as will enable the Issuer and the
Insurer to determine the status of each Contract and any Insurance Policy
relating thereto.
2.20. INSPECTION.
17
(a) At all times during the term hereof, the Servicer shall
afford the Issuer, the Insurer, the Back-up Servicer and the Indenture Trustee
and their authorized agents, upon three Business Days' prior written notice,
reasonable access during normal business hours to the Servicer's records and
files relating to the Contracts and the Collateral and will cause its personnel
to assist in any examination of such records by the Issuer, the Insurer, the
Back-up Servicer or the Indenture Trustee, and will permit such parties to
discuss the affairs, finances and accounts of the Servicer with the chief
operating officer and chief financial officer of the Servicer. The examination
referred to in this Section 2.20 will be conducted in a manner which does not
unreasonably interfere with the Servicer's normal operations or customer or
employee relations. Without otherwise limiting the scope of the examination the
Issuer, the Insurer, the Back-up Servicer or the Indenture Trustee may, using
generally accepted audit procedures, verify the status of each Contract and
review the Servicer Files and records relating thereto for conformity to Monthly
Servicer Reports prepared pursuant to Section 2.02(c) and compliance with the
standards represented to exist as to each Contract in this Servicing Agreement.
Nothing herein shall require the Issuer, the Insurer, the Back-up Servicer or
the Indenture Trustee to conduct any inspection pursuant to this Section. Such
parties may, with the Servicer's consent, which shall not be unreasonably
withheld or delayed, discuss the affairs, finances and accounts of the Servicer
with the Servicer's independent accountants, provided that an officer of the
Servicer shall have the right to be present during such discussions.
(b) At all times during the term hereof, the initial Servicer
shall keep available at its office located at 300 Interstate North, Atlanta,
Georgia 30559 (or such other location as to which it shall give written notice
to the Issuer, the Indenture Trustee, and the Insurer), for inspection by the
Issuer, the Insurer, the Back-up Servicer, and the Indenture Trustee a copy of
the Contracts Schedule, as amended.
(c) All information obtained by the Issuer, the Insurer, the
Back-up Servicer or the Indenture Trustee regarding the Obligors and the
Contracts, whether upon exercise of its rights under this Section 2.20 or
otherwise, shall be maintained by the Issuer, the Insurer, the Back-up Servicer
or the Indenture Trustee in confidence and shall not be disclosed to any other
person, except as otherwise required by applicable law or regulation.
(d) The Servicer will, at the Issuer's or the Insurer's request,
provide the Issuer or the Insurer with a data extract disk of portfolio
information.
(e) The Servicer and the Insurer and their agents and
representatives shall at all times have full and free access during normal
business hours to all computer tapes, books, correspondence and records of the
Back-up Servicer insofar as they relate to the Contracts and the Insurer and its
agents and representatives may examine the same, take extracts therefrom and
make photocopies thereof. The Servicer and the Insurer each agree that all such
information, practices, books, correspondence and records are to be regarded as
confidential information and that (a) it shall retain in strict confidence and
shall use its best efforts to ensure that its representatives retain in strict
confidence and will not disclose without the prior written consent of the
Back-up Servicer any or all of such information practices, books, correspondence
and records furnished to it and (b) it will not, and it will use its best
efforts (in the case of the Insurer,
18
consistent with Section 2.02 of the Insurance Agreement) to ensure that its
agents and representatives will not, make any use whatsoever (other than for
purposes contemplated by this Agreement) of any of such information practices,
computer tapes books, correspondence and records without the prior written
consent of the Back-up Servicer, unless such information (i) is generally
available to the public, (ii) is required by law, regulation, or court order to
be disclosed or is requested by any governmental authority having authority over
the Servicer and the Insurer, or is necessary to preserve any of such Persons'
rights under or to enforce any provision of the Indenture, or (iii) is required
by the Rating Agencies in connection with their rating of the related Notes or
the implied rating of the facility.
2.21. ENFORCEMENT.
(a) The Servicer will, consistent with the standard of care
required by Section 2.18 hereof, act with respect to the Contracts and the
Insurance Policies in such manner as will, in the reasonable judgment of the
Servicer, maximize the amount to be received by the Indenture Trustee with
respect thereto.
(b) The Servicer shall to the extent consistent with the
servicing standards set forth in Section 2.18, including the Collection Policy,
or at the written direction of the Insurer sue to enforce or collect upon the
Contracts and the Insurance Policies (including unpaid claims), in its own name,
if possible, or as agent for the Issuer or the Indenture Trustee. If the
Servicer commences a legal proceeding to enforce a Contract or an Insurance
Policy, the act of commencement shall be deemed to be an automatic assignment of
the Contract and the related rights under the Insurance Policies by the Issuer
to the Servicer for purposes of collection only. If, however, in any enforcement
suit or legal proceeding it is held that the Servicer may not enforce a Contract
or an Insurance Policy on the grounds that it is not a real party in interest or
a holder entitled to enforce the Contract or the Insurance Policy, the Issuer
shall, at the Servicer's request, assign the Contract or the Insurance Policy to
the Servicer to the limited extent necessary to enforce the Contract or the
Insurance Policy, or take such steps as the Issuer deems necessary to enforce
the Contract or the Insurance Policy, including bringing suit in its name.
(c) The Servicer shall exercise any rights of recourse against
third persons that exist with respect to any Contract in accordance with the
standard of care required by Section 2.18 hereof. In exercising such recourse
rights, the Servicer is hereby authorized on the Issuer's behalf to reassign the
Contract and to deliver the certificate of title to the Financed Vehicle to the
person against whom recourse exists at the price set forth in the document
creating the recourse.
(d) The Servicer may grant to the Obligor on any Contract that
has been repaid in full any rebate, refund or adjustment that the Servicer in
good faith believes is required because of prepayment in full of the Contract,
and may deduct the amount of any such rebate, refund or adjustment from the
amount otherwise payable by the Servicer into the Collection Account. The
Servicer may not permit any rescission or cancellation of any Contract nor may
it take any action with respect to any Contract, except as required by
applicable law, regulation or court order, or Insurance Policy which would
materially impair the rights of the Indenture Trustee, the Insurer or the
Noteholders therein or in the proceeds thereof.
19
2.22. PAYMENT IN FULL ON CONTRACT. Upon payment in full on any Contract,
the Servicer shall notify the Custodian prior to the next succeeding
Determination Date by a written request for the release of such Contract (which
shall include a statement of an officer of the Servicer to the effect that all
amounts received in connection with such payment in full which are required to
be deposited in the Collection Account pursuant to Sections 3.02 and 3.03 hereof
have been so deposited).
2.23. DUTIES OF BACK-UP SERVICER.
(a) The Back-up Servicer will perform the services set forth in
this Section 2.23 which shall not be delegated to the Servicer. The Back-up
Servicer shall, unless it is prohibited as a matter of law, as evidenced by an
opinion of counsel provided for in Section 5.08 and unless a different Successor
Servicer is appointed by the Insurer, service the Contracts upon receipt of
written notice of an Event of Servicing Termination by the Servicer under this
Servicing Agreement. The Back-up Servicer will, on a periodic basis, perform the
functions specified in this Section 2.23, provided that the Back-up Servicer
shall be entitled to request of and receive from the Indenture Trustee and the
Servicer, as appropriate, all information necessary to conduct tests or make
reports in a timely manner as specified below and, except as otherwise specified
herein, the Back-up Servicer shall be entitled to assume for all purposes that
the information received by it is true, correct and complete, and the Back-up
Servicer shall be fully protected in relying upon such information without any
independent investigation or audit to prove the facts stated therein. The
Back-up Servicer shall utilize such methods as it deems reasonable and necessary
to reconcile information provided by the Servicer with the cash balances held by
the Indenture Trustee.
(b) Prior to each Payment Date, the Back-up Servicer shall review
the Monthly Servicer Report related thereto and shall:
(i) determine that such Monthly Servicer Report is
complete on its face;
(ii) review the amounts on deposit in the Collection
Account against the monthly distribution amounts set forth in such Monthly
Servicer Report and reasonably determine whether the amount on deposit is
sufficient to pay such distribution amounts; and
(iii) determine the amount on deposit in the Reserve
Account.
(c) No later than each Payment Date, the Back-up Servicer shall
load the computer tape or diskette received from the Servicer pursuant to
Section 2.02(f) hereof, and confirm that such computer tape or diskette is in
readable form and calculate and confirm the aggregate Principal Balance of
Contracts as of the most recent Payment Date.
In addition, the Back-up Servicer shall confirm that the average
Delinquency Ratio for any three Collection Periods and the Cumulative Net Loss
Rate as set forth in the Monthly
20
Servicer Report, are accurate based solely on a comparison to the computer tape
referred to above.
(d) In the event of any discrepancy between the information set
forth in subparagraphs (b) and (c), as calculated by the Servicer, from that
determined or calculated by the Back-up Servicer, the Back-up Servicer shall
promptly notify the Servicer, the Indenture Trustee, and the Insurer of such
discrepancy. If within ten days of such notice being provided to the Servicer,
the Back-up Servicer and the Servicer are unable to resolve such discrepancy,
the Back-up Servicer shall promptly notify the Rating Agencies, the Insurer, the
Indenture Trustee, and any other Persons identified on a list provided to the
Back-up Servicer, as such list may be amended from time to time, of such
discrepancy.
(e) Other than as specifically set forth elsewhere in this
Servicing Agreement, the Back-up Servicer shall have no obligation to supervise,
verify, monitor or administer the performance of the Servicer and shall have no
liability for any action taken or omitted by the Servicer.
(f) The Back-up Servicer shall consult fully with the Servicer as
may be necessary from time to time to perform or carry out the Back-up
Servicer's obligations hereunder, including the obligation, if requested by the
Insurer, to succeed at any time to the duties and obligations of the Servicer as
servicer under Section 5.02 hereof.
2.24. ASSUMPTION OF DUTIES BY BACK-UP SERVICER. At any time following
the assumption of duties of the Servicer by the Back-up Servicer or the
designation of a Successor Servicer pursuant to section 2.01(c), the Servicer
shall, at the Indenture Trustee's or the Insurer's request, (A) assemble all of
the records relating to the Collateral including all Contract Files, and shall
make the same available to the Indenture Trustee and the Insurer at a place
selected by the Indenture Trustee and the Insurer or its designee, and (B)
segregate all cash, checks and other instruments received by it from time to
time constituting collections of Collateral in a manner acceptable to the
Indenture Trustee and the Insurer and shall promptly upon receipt but no later
than two Business Days after receipt, remit all such cash, checks and
instruments, duly endorsed or with duly executed instruments of transfer, to the
lockbox account maintained by the Lockbox Bank or its designee.
2.25. ERRORS AND OMISSIONS INSURANCE. The Servicer has obtained, and
shall continue to maintain in full force and effect, errors and omissions
insurance and employee theft insurance of a type and in such amount as is
customary for servicers engaged in the business of servicing automobile
contracts. The scope of such insurance coverage shall include the acts and
omissions of Subservicers or, if that is not the case with respect to any
Subservicer, the Servicer shall require such Subservicer to maintain such
insurance or a bond substantially equivalent thereto. Annually and more
frequently upon request of the Issuer, the Insurer, the Indenture Trustee or the
Back-up Servicer, the Servicer shall cause to be delivered to the Indenture
Trustee a certification evidencing coverage under such insurance. Any such
insurance shall not be canceled or modified in a materially adverse manner
without thirty days' prior written notice to the Issuer, the Insurer, the
Indenture Trustee and the Rating Agencies. No provision of this Section 2.25
requiring the
21
maintenance of insurance shall diminish or relieve the Servicer from its duties
and obligations as set forth in this Servicing Agreement.
2.26. RESPONSIBILITIES OF BACK-UP SERVICER AND SERVICER. Neither the
Back-up Servicer nor the Servicer shall have any duties, obligations or
responsibilities other than those specifically expressed and set forth herein
and no implied obligations of the Back-up Servicer or the Servicer shall be read
into this Servicing Agreement. Neither the Back-up Servicer nor the Servicer nor
any of their respective directors, officers, agents or employees shall be liable
to any person, including, without limitation, the Servicer or the Back-up
Servicer, as the case may be, or the Issuer, the Insurer, the Indenture Trustee
or the Noteholders in connection with this Servicing Agreement, except for the
breach of any of its representations and warranties or obligations under this
Servicing Agreement or for the negligence, bad faith or willful misconduct of
the Back-up Servicer or the Servicer, as the case may be, or any of their
respective officers, directors, agents or employees. The Back-up Servicer may
rely on and shall be protected in acting upon, or in refraining from acting in
accordance with, any resolution, officer's certificate, certificate of auditors
or any other certificate, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document reasonably believed by it to
be genuine and correct and to have been signed or presented by the proper person
or persons. Without limiting the foregoing, the Back-up Servicer (i) may consult
with legal counsel (including the Indenture Trustee's or the Back-up
Servicer's), independent public accountants and other experts selected by it
with reasonable care and shall not be liable for any action reasonably taken or
omitted to be taken by it in accordance with the advice of such counsel,
accountants or experts, (ii) shall not be responsible to the Issuer, the
Insurer, the Servicer, the Indenture Trustee or any other person for any
recitals, statements, warranties or representations made in or in connection
with this Servicing Agreement, the Transaction Documents or any other agreement,
document or instrument executed in connection therewith by any other person,
(iii) shall not be responsible for the actions or omissions of any other person,
including, without limitation, the Servicer, the Seller, the Issuer, the
Insurer, the Indenture Trustee and the Noteholders unless such act or omission
was caused by an act or omission of the Back-up Servicer, (iv) except as
provided in this Servicing Agreement or any Transaction Document, shall not have
any duty to ascertain or to inquire as to the performance or observance of any
of the terms, covenants or conditions of the Indenture or any other Transaction
Document on the part of any person, or to inspect the property (including the
books and records) of the Seller, the Insurer, the Issuer or the Servicer, (v)
except as otherwise provided herein, shall not be charged with the knowledge of
any breach of representation or warranty by any other Person, or the failure of
any other Person to comply with its obligations, hereunder or under any other
Transaction Document, or of the occurrence of any Event of Servicing Termination
unless a responsible officer of the Back-up Servicer has received written notice
of the same from the Servicer, the Insurer or the Indenture Trustee, as the case
may be, or otherwise has actual knowledge of such breach or Event of Servicing
Termination, (vi) shall not be responsible to any Person for the due execution,
legality, validity and enforceability against the other parties of this
Servicing Agreement, and (vii) shall incur no liability under or in respect of
this Servicing Agreement by acting upon any notice (including notice by
telephone), consent, certificate or other instrument or writing (which may be
telex or telecopy) reasonably believed by it to be genuine and signed, sent or
communicated by the proper party or parties.
22
It is agreed and understood that the Back-up Servicer is
responsible for providing the services described in Section 2.23 only in
accordance with the information as shall have been timely supplied to it by the
Servicer, the Indenture Trustee or the Collection Account Depository, as the
case may be. The Back-up Servicer shall incur no liability for any failure by
the Servicer, the Indenture Trustee or the Collection Account Depository to
furnish information required of it, nor shall the Back-up Servicer be
responsible for the content or accuracy of any information provided to it by any
such Person, unless required by the Transaction Documents to do so. Except as
may be expressly provided herein or in the Indenture, the Back-up Servicer shall
have no duty to supervise, investigate or audit any records or activities of the
Servicer with respect to the servicing of the Collateral. The Back-up Servicer
shall have no responsibility or liability for any acts or omissions of the
Servicer with respect to the Collateral.
The Back-up Servicer shall not be required to expend or risk its
own funds or otherwise incur financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if the
repayment of such funds or adequate written indemnity against such risk or
liability is not reasonably assured to it in writing prior to the expenditure or
risk of such funds or incurrence of financial liability.
2.27. RE-LIENING. Upon the occurrence of a Re-Liening Trigger, the
Insurer may instruct the Servicer to take or cause to be taken such actions as
may, in the judgment of the Insurer or its counsel, be necessary to perfect or
re-perfect the security interests in the Financed Vehicles in the name of the
Indenture Trustee by amending the title documents relating to such Financed
Vehicles or by such other reasonable means as may, in the judgment of the
Insurer or its counsel, be necessary or prudent. The Servicer shall take or
cause to be taken such actions. The Servicer hereby agrees to pay for all fees
and expenses arising as a result of the occurrence of a Re-Liening Trigger
related to such perfection or re-perfection and to take all action necessary
therefor, including the preparation, execution and delivery of all such
documents as may be requested by the Indenture Trustee or the Servicer in
connection therewith. The Servicer shall grant to the Successor Servicer an
irrevocable power of attorney, pursuant to which the Servicer shall appoint the
Successor Servicer as its attorney-in-fact, such appointment being coupled with
an interest, to take any and all steps required to be performed by it pursuant
to this Section 2.27 including execution of certificates of title or any other
documents in the name and stead of the Servicer. If at any time a Person other
than First Investors Servicing Corporation becomes the Servicer, First Investors
Servicing Corporation shall grant to such Successor Servicer, promptly after its
appointment as such, a power of attorney as described in the preceding sentence.
2.28. REPURCHASE BY SERVICER UPON BREACH. The Seller, the Insurer, the
Depositor, the Servicer or the Issuer, as the case may be, shall inform the
other parties to this Agreement and the Indenture Trustee promptly, in writing,
upon the discovery of any breach or failure to be true of the representations
and warranties made by the Servicer pursuant to this Agreement. If such breach
or failure shall not have been cured by the close of business on the last day of
the Collection Period which includes the thirtieth (30th) day after the date on
which the Servicer becomes aware of, or receives written notice from the Seller,
the Depositor, the Insurer or the Issuer of, such breach or failure, and such
breach or failure materially and adversely affects the interest of the Issuer or
the Insurer in a Contract, the Servicer shall repurchase such Contract
23
from the Issuer on the Business Day next preceding the Payment Date immediately
following such Collection Period. In consideration of the repurchase of a
Contract hereunder, the Servicer shall remit the Purchase Amount of such
Contract in the manner specified in Section 3.4 of the Sale and Allocation
Agreement. The sole remedy of the Issuer, the Indenture Trustee, the Insurer
(except as otherwise specified in the Insurance Agreement), and the Noteholders
with respect to a breach or failure to be true of the representations and
warranties made by the Servicer pursuant to this Agreement shall be to require
the Servicer to repurchase Contracts pursuant to this Section 2.28. Neither the
Owner Trustee nor the Indenture Trustee shall have any duty to conduct an
affirmative investigation as to the occurrence of any condition requiring the
repurchase of any Contract pursuant to this Section 2.28 or the eligibility of
any Contract for purposes of this Agreement.
ARTICLE III.
ACCOUNTS; COLLECTIONS
3.01. ACCOUNTS. There has been established pursuant to the Indenture the
Collection Account in the name of the Indenture Trustee for the benefit of the
Noteholders and the Insurer.
3.02. COLLECTIONS. The Servicer shall remit or cause a Subservicer to
remit first, to a lockbox account maintained with the Lockbox Bank and second,
to the Collection Account described in Section 3.03 hereof, and to no other
account, as soon as practicable, but in no event later than the Collection
Account Depository's close of business two Business Days after receipt thereof
in the lockbox, all Collections received during the Collection Period, in
respect of a Contract being serviced by the Servicer, and all payments or other
amounts, if any, made by or on behalf of an Obligor or received by the Servicer
with respect to any Contract.
3.03. COLLECTION ACCOUNT AND ACKNOWLEDGMENT LETTER.
(a) The Issuer shall provide thirty days' notice to the Servicer,
the Indenture Trustee, the Insurer and the Back-up Servicer of its appointment
of a successor Collection Account Depository which shall be acceptable to the
Rating Agencies, the Insurer and the Indenture Trustee and which shall hold the
Collection Account under the terms and conditions outlined herein and in the
Indenture.
(b) Except as otherwise provided herein, the Servicer shall
deposit or cause to be deposited into the Collection Account all amounts
(including late payments) remitted by Obligors to the Servicer under the terms
of the Contracts within two Business Days after receipt thereof by the lockbox;
provided, however, that the Servicer shall be entitled to reimbursement of all
amounts remitted by or on behalf of the Obligors to the Servicer under the terms
of, or with respect to, the Contracts, which amounts represent late fees or
prepayment charges, including administrative fees or similar charges allowed by
applicable law.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
24
4.01. REPRESENTATIONS AND WARRANTIES OF THE SERVICER. The initial
Servicer hereby represents, warrants and covenants to the Back-up Servicer, the
Issuer, the Insurer, the Noteholders, the Depositor and the Indenture Trustee
that as of the date of this Servicing Agreement and, for so long as the initial
Servicer shall continue to act as Servicer hereunder:
(a) The Servicer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware;
(b) All necessary corporate, regulatory or other similar action
has been taken to authorize and empower the Servicer and the officers or
representatives acting on the Servicer's behalf, and the Servicer has full power
and authority to execute, deliver and perform this Servicing Agreement;
(c) This Servicing Agreement and the Sale and Allocation
Agreement have been duly authorized, executed and delivered by the Servicer and
the performance and compliance with the terms of this Servicing Agreement and
the Sale and Allocation Agreement will not violate the Servicer's certificate of
incorporation or bylaws or constitute a default (or an event which, with notice
or lapse of time, or both, would constitute a default) under, or result in the
breach of, any Transaction Document or any other contract, loan, lease, credit
agreement or any other agreement or instrument to which the Servicer is a party
or which may be applicable to the Servicer or any of its assets;
(d) The Servicer is duly licensed and qualified to perform the
functions specified herein and this Servicing Agreement and the Sale and
Allocation Agreement constitutes a valid, legal and binding obligation of the
Servicer, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and to general principles of equity;
(e) The Servicer is not in violation of, and the execution,
delivery and performance of this Servicing Agreement and the Sale and Allocation
Agreement by the Servicer will not constitute a violation with respect to any
order or decree of any court or any order, regulation or demand of any federal,
state, municipal or governmental agency, which violation might have consequences
that would materially and adversely affect the condition (financial or other) or
operations of the Servicer or its properties or might have consequences that
would affect the performance of its duties hereunder;
(f) No proceeding of any kind, including but not limited to
litigation, arbitration, judicial or administrative, is pending or threatened
against or contemplated by the Servicer which would under any circumstance have
an adverse effect on the execution, delivery, performance or enforceability of
this Servicing Agreement or the Sale and Allocation Agreement;
(g) No information, officer's certificate or statement furnished
in writing or report delivered to the Indenture Trustee, the Issuer, the
Insurer, the Back-up Servicer or the Noteholders by the Servicer required under
this Servicing Agreement or the Sale and Allocation
25
Agreement contains any untrue statement of a material fact or omits a material
fact necessary to make the information, certificate, statement or report not
misleading; provided, that the Servicer makes no representation or warranty with
respect to any information incorporated into or forming the basis of any
officer's certificate, information, statement or report provided by the Servicer
that is provided to the Servicer by any other Person;
(h) The Servicer has the knowledge, the experience and the
systems, financial and operational capacity available to timely perform each of
its obligations hereunder; and
(i) The Servicer has, with respect to the Contracts, complied in
all material respects with the Collection Policy.
4.02. REPRESENTATIONS AND WARRANTIES OF THE BACK-UP SERVICER. The
Back-up Servicer hereby represents, warrants and covenants to the Issuer, the
Insurer, the Noteholders, the Servicer, the Depositor and the Indenture Trustee
that as of the date hereof or as of such date specifically provided herein:
(a) The Back-up Servicer is a national banking association duly
organized, validly existing and authorized to engage in a banking business under
the federal laws of the United States of America;
(b) All necessary corporate, regulatory or other action has been
taken to authorize and empower the Back-up Servicer and the officers or
representatives acting on the Back-up Servicer's behalf to perform and comply
with the Back-up Servicer's obligations under this Servicing Agreement, and the
Back-up Servicer has full power and authority, to execute, deliver and perform
this Servicing Agreement;
(c) The execution and delivery of this Servicing Agreement by the
Back-up Servicer and its performance and compliance with the terms of this
Servicing Agreement will not violate the Back-up Servicer's articles of
association or bylaws or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result in the
breach of, any material contract, security agreement, loan, credit agreement or
any other agreement or instrument to which the Back-up Servicer is a party or
which may be applicable to the Back-up Servicer or any of its assets;
(d) This Servicing Agreement constitutes a legal, valid and
binding obligation of the Back-up Servicer, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
and other similar laws affecting the enforcement of creditors' rights generally
and to general principles of equity;
(e) The Back-up Servicer is not in violation of, and the
execution, delivery and performance of this Servicing Agreement by the Back-up
Servicer will not constitute a violation with respect to, any applicable order
or decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which violation might have consequences that
would materially and adversely affect the condition (financial or other) or
operations of the
26
Back-up Servicer or its properties or might have consequences that would
materially adversely affect the performance of its duties hereunder; and
(f) No proceeding of any kind, including but not limited to
litigation, arbitration, judicial or administrative, is pending or, to the
knowledge of the Back-up Servicer, contemplated or threatened against the
Back-up Servicer which would under any circumstance have an adverse effect on
the execution, delivery, performance or enforceability of this Servicing
Agreement by or against the Back-up Servicer.
4.03. REPRESENTATIONS AND WARRANTIES OF THE ISSUER. The Issuer hereby
represents, warrants and covenants to the Back-up Servicer, the Servicer, the
Noteholders, the Insurer, the Depositor and the Indenture Trustee that as of the
date of this Servicing Agreement or as of such date specifically provided
herein:
(a) The Issuer is a Delaware business trust duly organized and
validly existing under the laws of the State of Delaware and has full power and
authority to execute and deliver this Servicing Agreement and to perform the
terms and provisions hereof;
(b) The execution, delivery and performance by the Issuer of this
Servicing Agreement have been duly authorized by all necessary action by the
Issuer, do not require any approval or consent of any Person, do not and will
not conflict with any material provision of the organizational documents of the
Issuer, and do not and will not conflict with or result in a breach which would
constitute a material default under any agreement binding upon or applicable to
it or such of its property which is material to it, or any law or governmental
regulation or court decree applicable to it or such material property, and this
Servicing Agreement is the legal, valid and binding obligation of the Issuer
enforceable in accordance with its terms except as the same may be limited by
insolvency, bankruptcy, reorganization or other laws relating to or affecting
the enforcement of creditors' rights or by general equity principles; and
(c) No litigation or administrative proceeding of or before any
court, tribunal or governmental body is presently pending, or to the knowledge
of the Issuer threatened, against the Issuer or its properties or with respect
to this Servicing Agreement, which, if adversely determined would, in the
opinion of the Issuer, have a material adverse effect on the transactions
contemplated by this Servicing Agreement.
4.04. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties set forth in this Article IV are continuous and shall survive the
date of this Servicing Agreement. Upon discovery by any of the Issuer, the
Indenture Trustee, the Back-up Servicer, the Depositor or the Servicer of a
breach of any of the foregoing representations and warranties, the party
discovering such breach shall give prompt written notice to the other parties
hereto, including the Insurer and the Indenture Trustee.
4.05. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE OBLIGATIONS OF,
OR RESIGNATION OF Servicer. Any Person (a) into which the Servicer may be merged
or consolidated, (b) which may result from any merger or consolidation to which
the Servicer shall be a party, (c) which may succeed to the properties and
assets of the Servicer substantially as a whole, or (d) which may
27
succeed to the duties and obligations of the Servicer under this Servicing
Agreement following the resignation of the Servicer subject to Section 2.01
hereof, which Person executes an agreement of assumption to perform every
obligation of the Servicer hereunder, shall be the successor to the Servicer
under this Servicing Agreement with the prior written consent of the Insurer (if
no Insurer Default shall have occurred and be continuing) and without further
act on the part of any of the parties to this Servicing Agreement; provided,
however, that (i) written notice of such merger, consolidation or assumption of
liabilities shall be delivered by the Servicer to the Insurer and the
Noteholders, (ii) immediately after giving effect to such transaction, no Event
of Servicing Termination (as defined in Section 5.01), and no event which, after
notice or lapse of time, or both, would become an Event of Servicing Termination
shall have occurred or be continuing, (iii) no Event of Default, Event of
Servicing Termination or Re-Liening Trigger would occur as a result of such
merger, consolidation or assumption of liability, (iv) the Servicer shall have
delivered to the Issuer, the Insurer, the Back-up Servicer and the Indenture
Trustee an officer's certificate and an opinion of counsel each stating that
such consolidation, merger, succession or resignation and such agreement of
assumption comply with this Section 4.05 and that all conditions precedent
provided for in this Servicing Agreement relating to such transaction have been
complied with and (v) the Servicer shall have delivered to the Issuer, the
Insurer, the Back-up Servicer and the Indenture Trustee an opinion of counsel
either (A) stating that, in the opinion of such counsel, all financing
statements, continuation statements and amendments and notations on certificates
of title thereto have been executed and filed that are necessary fully to
preserve and protect the interest of the Issuer, the Noteholders, the Insurer
and the Indenture Trustee in the Contracts and the Financed Vehicles, and
reciting the details of such filings, or (B) stating that, in the opinion of
such counsel, no such action shall be necessary to preserve and protect such
interest.
ARTICLE V.
DEFAULT, REMEDIES AND INDEMNITY
5.01. EVENT OF SERVICING TERMINATION. Any of the following acts or
occurrences shall constitute an "Event of Servicing Termination" under this
Servicing Agreement:
(a) any failure by the Servicer to make any payment, transfer or
deposit to the Indenture Trustee on the date such payment, transfer or deposit
is required to be made;
(b) any failure by the Servicer to provide any notices to the
Indenture Trustee and the Insurer pursuant to this Servicing Agreement relating
to the transfer or calculation of funds;
(c) failure on the part of the Servicer to duly observe or
perform in any material respect any other covenants or agreements of the
Servicer set forth in this Servicing Agreement; or the Servicer shall assign its
duties hereunder (except as expressly permitted herein);
28
(d) any representation, warranty or certification made by the
Servicer or any successor thereto in this Servicing Agreement, or any
certificate delivered pursuant to this Servicing Agreement (other than any
representation or warranty relating to a Contract that has been purchased by the
Servicer), shall prove to have been incorrect when made, which has a material
adverse effect on the Noteholders or the Insurer;
(e) the Servicer or Back-up Servicer shall consent to the
appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to the Servicer or Back-up Servicer, respectively, or
of or relating to all or substantially all of their respective properties; or a
decree or order of a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Servicer or Back-up Servicer or
Successor Servicer or Successor Back-up Servicer and such decree or order shall
have remained in force undischarged or unstayed for a period of 60 days; or the
Servicer or Back-up Servicer or any successor to either shall admit in writing
its inability to pay its debts generally as they become due, file or have filed
against it a petition or commence an action to take advantage of any applicable
insolvency or reorganization statute, make any assignment for the benefit of its
creditors or voluntarily suspend payment of its obligations;
(f) the Servicer or the Back-up Servicer or any successor to
either shall fail to be an Eligible Servicer as determined by the Insurer;
(g) the Servicer makes any material changes to its Collection
Policy with respect to the Contracts without the consent of the Insurer, which
consent shall not be unreasonably withheld; or
(h) an Event of Default (as defined in the Indenture) occurs
which has not been waived by the Insurer or, if an Insurer Default has occurred
and is continuing, Noteholders evidencing not less than 51% of the Note Balance.
5.02. REMEDIES.
(a) If an Event of Servicing Termination shall occur and be
continuing, the Insurer (or, if an Insurer Default shall have occurred and be
continuing, any of the Indenture Trustee (to the extent an officer of the
Indenture Trustee has actual knowledge thereof), the Issuer, or the Indenture
Trustee at the direction of Noteholders evidencing not less than 51% of the Note
Balance), by notice given in writing to the Servicer or the Back-up Servicer, as
the case may be ("Termination Notice") (with copies to the Indenture Trustee and
the Issuer if given by the Insurer), may terminate all of the rights and
obligations of the Servicer or the Back-up Servicer, as the case may be, under
this Servicing Agreement (except as set forth in Section 5.03). On or after the
receipt by the Servicer of such Termination Notice, all authority, power,
obligations and responsibilities of the Servicer under this Servicing Agreement,
whether with respect to the Contracts, or otherwise, automatically shall pass
to, be vested in and become
29
obligations and responsibilities of the Back-up Servicer (or such other
Successor Servicer appointed in accordance herewith); provided, however, that
the Successor Servicer shall have no liability with respect to any obligation
which was required to be performed by the terminated Servicer prior to the date
that the Successor Servicer becomes the Servicer or any claim based on any
alleged action or inaction of the terminated Servicer. The Successor Servicer is
authorized and empowered by this Agreement to execute and deliver, on behalf of
the terminated Servicer, as attorney-in-fact or otherwise, any and all documents
and other instruments and to do or accomplish all other acts or things necessary
or appropriate to effect the purposes of such Termination Notice, whether to
complete the transfer and endorsement of the Contracts and related documents to
show the Issuer or the Indenture Trustee as lienholder or secured party on the
related title documents, or otherwise. The terminated Servicer agrees to
cooperate with the Successor Servicer in effecting the termination of the
responsibilities and rights of the terminated Servicer under this Servicing
Agreement, including, without limitation, the transfer to the Successor Servicer
for administration by it of all cash amounts that shall at the time be held by
the terminated Servicer for deposit, or have been deposited by the terminated
Servicer, in the Collection Account or thereafter received with respect to the
Contracts and the delivery to the Successor Servicer of all Servicer Files,
collection records and a computer tape in readable form as of the most recent
Business Day containing all information necessary to enable the Back-up Servicer
or other Successor Servicer, as the case may be, to service the Contracts. The
terminated Servicer shall grant the Issuer, the Indenture Trustee, the Successor
Servicer and the Insurer reasonable access to the terminated Servicer's premises
at the terminated Servicer's expense. Subject to Section 2.08(b), the Successor
Servicer shall be entitled to be reimbursed pursuant to Section 2.8(a)(i) of the
Indenture, to the extent described therein, and any excess pursuant to Section
2.8(a)(ix) of the Indenture for reasonable costs incurred by it in connection
with a transfer of servicing from the Servicer to such Successor Servicer.
(b) On and after the time the Servicer receives a Termination
Notice pursuant to Section 5.02(a), the Back-up Servicer (unless the Insurer
shall have exercised its option pursuant to the following paragraph to appoint
an alternate Successor Servicer) shall be the successor in all respects to the
Servicer in its capacity as servicer under this Servicing Agreement and the
transactions set forth or provided for in this Servicing Agreement, and shall be
subject to all the rights, responsibilities, restrictions, duties, liabilities
and termination provisions relating thereto placed on the Servicer by the terms
and provisions of this Servicing Agreement except as otherwise stated herein.
The Issuer and such successor shall take such action, consistent with this
Servicing Agreement, as shall be necessary to effectuate any such succession. If
a Successor Servicer is acting as Servicer hereunder, it shall only be subject
to termination under Section 5.02 upon the occurrence of any Event of Servicing
Termination with respect to such Successor Servicer.
(c) On and after the receipt by the terminated Servicer of a
Termination Notice pursuant to this Section 5.02, the terminated Servicer shall
continue to perform all servicing functions under this Servicing Agreement until
the date specified in the Termination Notice. The Insurer (provided that no
Insurer Default shall have occurred and be continuing) may exercise at any time
(after a Termination Notice is given) its right to appoint as Successor Back-up
Servicer or as Successor Servicer a Person other than the Person serving as
Indenture Trustee or Back-up
30
Servicer, as the case may be, at the time, and (without limiting the Insurer's
obligations under the Policy with respect to the Note) shall have no liability
to the Issuer, the Indenture Trustee, the Person then serving as Back-up
Servicer, any Noteholder or any other Person if it does so. If a Successor
Servicer is not chosen within 90 calendar days after the receipt by the Servicer
of the Termination Notice, the Back-up Servicer shall act as Successor Servicer
unless it is legally unable to do so, in which event the outgoing Servicer shall
continue to act as Servicer until a successor has been appointed and accepted
such appointment. If the Back-up Servicer shall be legally unable to act as
Servicer, and an Insurer Default shall have occurred and be continuing, the
Back-up Servicer, the Indenture Trustee, Noteholders evidencing not less than
51% of the Note Balance or the Issuer may petition a court of competent
jurisdiction to appoint an Eligible Servicer as the Successor Servicer.
Notwithstanding the above, no provision of this Servicing Agreement shall be
construed as relieving the Back-up Servicer of its obligation to succeed as
Successor Servicer upon the termination of the Servicer pursuant to this Section
5.02 or the resignation of the Servicer pursuant to Section 5.08. If, upon the
termination of the Servicer pursuant to this Section 5.02 or the resignation of
the Servicer pursuant to Section 5.08, the Insurer appoints a Successor Servicer
other than the Back-up Servicer, the Back-up Servicer shall not be relieved of
its duties as Back-up Servicer hereunder. Within 30 days of termination of the
Servicer, if such termination causes a change in the address to which Obligor
payments are to be sent, the Successor Servicer shall send, or cause to be sent,
to each Obligor, a written notice of the name and mailing address of the
Successor Servicer to which payments on the Contracts are to be made.
(d) The Insurer or, if an Insurer Default has occurred and is
continuing, the Indenture Trustee, the Issuer, or the Indenture Trustee at the
direction of Noteholders evidencing not less than 51% of the Note Balance shall
as promptly as possible appoint a Successor Back-up Servicer following delivery
of a Termination Notice with respect to the Back-up Servicer. If the Insurer or
Indenture Trustee, as applicable, shall fail to approve a Successor Back-up
Servicer within 30 days of the date of a Termination Notice, the Indenture
Trustee may petition a court of competent jurisdiction for the appointment of a
Successor Back-up Servicer that is an Eligible Servicer. Notwithstanding the
above, the Indenture Trustee shall, if it is legally unable so to act, petition
a court of competent jurisdiction to appoint any Eligible Servicer as the
Successor Back-up Servicer hereunder.
(e) Upon its appointment, the Successor Servicer or Successor
Back-up Servicer, as the case may be, shall be the successor in all respects to
the terminated Servicer or Back-up Servicer, as the case may be, with respect to
servicing functions under this Servicing Agreement and shall be subject to all
the responsibilities, duties and liabilities (arising on and after the time of
such appointment except for liability arising from the condition of the
Servicer's records at the time the servicing duties are transferred to the
Back-up Servicer or other Successor Servicer or for actions or omissions of
other Persons) relating thereto placed on the Servicer or Back-up Servicer,
respectively, by the terms and provisions hereof (except as otherwise provided
in this Servicing Agreement with respect to the Back-up Servicer acting as
Servicer), any Successor Servicer shall become the successor Administrator in
accordance with Section 20 of the Administration Agreement, and all references
in this Servicing Agreement to the Servicer or
31
Back-up Servicer shall be deemed to refer to the Successor Servicer or Successor
Back-up Servicer unless the context otherwise requires.
(f) In connection with such appointment and assumption, the
Back-up Servicer may make such arrangements for the compensation of itself and
the Successor Servicer out of collections of Contract payments, as it and such
Successor Servicer shall agree; provided, however, that no such compensation
shall be in excess of the Back-up Servicing Fees and Servicing Fees permitted to
the Back-up Servicer and the Servicer, respectively, pursuant to this Servicing
Agreement without the approval of the Insurer or, if an Insurer Default has
occurred and is continuing, Noteholders evidencing not less than 51% of the Note
Balance.
5.03. INDEMNITY BY THE SERVICER. The Servicer shall be liable to the
Issuer, the Insurer, the Indenture Trustee, the Noteholders and the Back-up
Servicer (collectively, the "Indemnified Parties") to the extent of the
following:
(a) The Servicer shall indemnify, defend and hold harmless the
Indemnified Parties and any of the officers, directors, employees and agents of
the Indemnified Parties from and against any and all costs, expenses, losses,
damages, claims and liabilities, including reasonable fees and expenses of
counsel and expenses of litigation, arising out of or resulting from the use,
ownership or operation by the Servicer or any affiliate thereof of a Financed
Vehicle.
(b) The Servicer shall indemnify, defend and hold harmless the
Indemnified Parties and any of the officers, directors, employees and agents of
the Indemnified Parties from and against any and all costs, expenses, losses,
claims, damages and liabilities to the extent that such cost, expense, loss,
claim, damage or liability arose out of, or was imposed upon any such Person
through the breach of this Servicing Agreement by the Servicer, the negligence,
misfeasance or bad faith of the Servicer in the performance of its duties under
this Servicing Agreement or by reason of reckless disregard of its obligations
and duties under this Servicing Agreement.
(c) The Servicer shall be strictly accountable for all payments
actually received on the Contracts.
THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH
SECTION 5.03 LIABILITIES AND COSTS ARE IN ANY WAY OR TO ANY EXTENT OWED, IN
WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY, OR ARE CAUSED,
IN WHOLE OR IN PART BY ANY NEGLIGENT ACT OR OMISSION OF ANY KIND BY ANY
INDEMNIFIED PARTY.
5.04. LIABILITY OF THE BACK-UP SERVICER. The Back-up Servicer shall not
be liable to the Servicer, the Issuer, the Insurer, the Indenture Trustee or the
Noteholders (i) by reason of any act, contract or transaction performed in good
faith by the Back-up Servicer pursuant to this Servicing Agreement nor shall it
be liable for any loss resulting therefrom or for any lost profit derived
therefrom or any errors in judgment, so long as such act, contract or
transaction shall, at the time at which it was performed or entered into, have
been reasonable and prudent under the
32
circumstances and shall have conformed in all material respects to the express
provisions of this Servicing Agreement or (ii) for any action taken or for
errors in judgment committed directly resulting from fraud, negligence or
willful misconduct of the Seller, the Issuer, the Servicer, the Insurer, the
Indenture Trustee or the Noteholders.
5.05. NOTIFICATION. Upon discovery of the occurrence of any Event of
Servicing Termination, after the expiration of any applicable grace period, the
Servicer or the Back-up Servicer shall give written notice of the occurrence of
an Event of Servicing Termination to the Insurer, the Indenture Trustee, and the
Owner Trustee. Unless the Insurer or, if an Insurer Default has occurred and is
continuing, Noteholders evidencing not less than 51% of the Note Balance, gives
written notice to the Servicer or the Back-up Servicer, as the case may be,
within seven Business days of receipt of such notice from the Servicer or the
Back-up Servicer that the Insurer or Noteholders evidencing not less than 51% of
the Note Balance, as the case may be, have waived such Event of Servicing
Termination, the Servicer or the Back-up Servicer, as the case may be, shall
then give notice in writing to the Rating Agencies, the Issuer and any other
Persons identified on a list provided to the Servicer or the Back-up Servicer,
as the case may be, by the Issuer as such list may be amended from time to time,
and the Indenture Trustee shall give notice to the Noteholders.
5.06. WAIVER OF EVENT OF DEFAULTS. The Insurer or the Indenture Trustee
at the direction of Noteholders evidencing not less than 51% of the Note Balance
(with the prior written consent of the Insurer if no Insurer Default shall have
occurred and be continuing) may waive any Event of Servicing Termination, except
for an Event of Servicing Termination arising under Section 5.01(e).
Notwithstanding the preceding sentence, the Insurer (if no Insurer Default shall
have occurred and be continuing) may, on behalf of all Noteholders, waive any
Event of Servicing Termination. Upon any such waiver of an Event of Servicing
Termination, such default shall cease to exist, and any default arising
therefrom shall be deemed to have been remedied for every purpose of this
Servicing Agreement. No such waiver shall extend to any subsequent or other
default or impair any right consequent thereon except to the extent expressly so
waived.
5.07. SURVIVAL. The agreements in Section 5.03 shall survive the
termination of the Indenture and the payment in full of the Note.
5.08. SERVICER AND BACK-UP SERVICER NOT TO RESIGN. Subject to the
provisions of Section 5.02, neither the Servicer nor the Back-up Servicer shall
resign from the obligations and duties imposed on it by this Servicing Agreement
as Servicer or Back-up Servicer except upon a determination that by reason of a
change in legal requirements the performance of its duties under this Servicing
Agreement would cause it to be in violation of such legal requirements in a
manner which would have a material adverse effect on the Servicer or the Back-up
Servicer, as the case may be, and the Insurer does not elect to waive the
obligations of the Servicer or the Back-up Servicer, as the case may be, to
perform the duties which render it legally unable to act or to delegate those
duties to another Person. Any such determination permitting the resignation of
the Servicer or Back-up Servicer shall be evidenced by an opinion of counsel to
such effect delivered and acceptable to the Issuer, the Indenture Trustee, and
the Insurer. No resignation of the Servicer shall become effective until the
Back-up Servicer or an entity acceptable to the Insurer
33
shall have assumed the responsibilities and obligations of the Servicer. No
resignation of the Back-up Servicer shall become effective until an entity
acceptable to the Insurer shall have assumed the responsibilities and
obligations of the Back-up Servicer; provided, however, that in the event a
successor Back-up Servicer is not appointed within 60 days after the Back-up
Servicer has given notice of its resignation and has provided the opinion of
counsel required by this Section 5.08, the Back-up Servicer may petition a court
of competent jurisdiction for its removal.
ARTICLE VI.
TERMINATION OF AGREEMENT
6.01. TERM. This Servicing Agreement shall remain in effect until
termination of the Indenture.
6.02. EFFECT OF TERMINATION. Upon termination of this Servicing
Agreement, the Servicer shall, at the direction of the Issuer, promptly deliver
to the Issuer or its designee all Servicer Files and any related files and
correspondence in its possession as are related to the management of the
Contracts and the services provided hereunder.
6.03. TRANSFER OF SERVICING. Upon termination of this Servicing
Agreement, the Servicer shall cooperate in the transfer of the Servicer Files.
Any matters pending at the effective termination date will continue to be
processed in an orderly and timely fashion; it being intended, however, that
responsibility for the Contracts shall transfer as quickly as practicable and in
any event within thirty days after the termination date.
ARTICLE VII.
MISCELLANEOUS PROVISIONS
7.01. AMENDMENT. This Servicing Agreement may only be amended by mutual
written consent of the parties hereto and with the prior written consent of the
Insurer and Noteholders evidencing not less than 51% of the Note Balance. No
amendment made to the Sale and Allocation Agreement or the Indenture, without
the Back-up Servicer's or the Servicer's written consent, shall be effective as
to the Back-up Servicer or the Servicer, respectively, to the extent such
amendment is disadvantageous in any respect to the Back-up Servicer or the
Servicer, respectively. The Rating Agencies and any other Persons identified on
a list provided to the Issuer, as such list may be amended from time to time,
shall be given by the Issuer prior notice of any proposed amendment to the
Servicing Agreement, the Sale and Allocation Agreement or the Indenture and,
upon any such amendment, shall promptly be provided by the Issuer a copy of any
such amendment.
7.02. WAIVERS. The provisions of this Servicing Agreement may only be
waived by written consent of the Insurer or, if an Insurer Default has occurred
and is continuing, Noteholders evidencing not less than 51% of the Note Balance,
and the parties hereto. The failure of any party at any time to require
performance by the other of any provision of this
34
Servicing Agreement shall in no way affect that party's right to enforce such
provision, nor shall the waiver by any party of any breach of any provision of
this Servicing Agreement be taken or held to be a waiver of any further breach
of the same provision or any other provision.
7.03. NOTICES. All notices, requests, consents and other communications
hereunder shall be in writing and shall be delivered personally or mailed by
first-class registered or certified mail, postage prepaid, or by telephonic
facsimile transmission and overnight delivery service, postage prepaid, in any
case addressed as follows:
To the Servicer:
First Investors Servicing Corporation
c/o First Investors Financial Services, Inc.
675 Bering, Suite 710
Houston, Texas 77057
Attention: Bennie H. Duck
Telephone: (713) 977-2600
Fax: (713) 260-0028
To the Indenture Trustee/Back-up Servicer:
Norwest Bank Minnesota, National Association
Norwest Center
MAC N9311-161
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479
Attention: Corporate Trust Services
Telephone: (612) 667-8058
Fax: (612) 667-3464
35
To the Issuer:
First Investors Auto Owner Trust 2000-A
c/o Bankers Trust (Delaware), as Owner Trustee
1011 Centre Road, Suite 200
Wilmington, Delaware 19805
Attention: Corporate Trust
Telephone: (302) 636-3305
Fax: (302) 636-3222
with a copy to:
Bankers Trust Company
4 Albany Street, 10th Floor
New York, New York 10006
Attention: Structured Finance Group
Telephone: (212) 250-6501
Fax: (212) 250-6439
To the Rating Agencies:
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Attention: Irina Faynzilberg
Phone: (212) 553-7297
Fax: (212) 553-3856
Standard & Poor's
55 Water Street
New York, New York 10041
Attention: Nick Danzis
Phone: (212) 438-8436
Fax: (212) 438-2649
To the Insurer:
MBIA Insurance Corporation
113 King Street
Armonk, New York 10504
Attention: Insured Portfolio Management-
Structured Finance (IPM-SF)
Phone: (914) 273-4545
Fax: (914) 765-3810
36
Such notice, request, consent or other communication shall be deemed given when
so delivered, or if mailed, two days after deposit with the U.S. Postal Service.
7.04. SEVERABILITY OF PROVISIONS. If one or more of the provisions of
this Servicing Agreement shall be held invalid for any reason, such provisions
shall be deemed severable from the remaining provisions of this Servicing
Agreement and shall in no way affect the validity or enforceability of such
remaining provisions. To the extent permitted by law, the parties hereto hereby
waive any law which renders any provision of this Servicing Agreement prohibited
or unenforceable.
7.05. RIGHTS CUMULATIVE. All rights and remedies under this Servicing
Agreement are cumulative, and none is intended to be exclusive of another. No
delay or omission in insisting upon the strict observance or performance of any
provision of this Servicing Agreement, or in exercising any right or remedy,
shall be construed as a waiver or relinquishment of such provision, nor shall it
impair such right or remedy. Every right and remedy may be exercised from time
to time and as often as deemed expedient.
7.06. NO OFFSET. Prior to the termination of this Servicing Agreement,
the obligations of the Back-up Servicer and the Servicer under this Servicing
Agreement shall not be subject to any defense, counterclaim or right of offset
which the Back-up Servicer or the Servicer may have against the other or against
the Issuer, the Seller, the Insurer, any Noteholder or the Indenture Trustee,
whether in respect of this Servicing Agreement, any Contract or otherwise.
7.07. INSPECTION AND AUDIT RIGHTS. The Servicer agrees that, upon prior
written notice, it will permit the Issuer, the Insurer, the Back-up Servicer, or
the Indenture Trustee and their respective representatives, during the
Servicer's normal business hours, to examine the Servicer Files, all the books
of account, records, reports and other papers of the Servicer relating to the
Contracts, to make copies and extracts therefrom, to cause such books to be
audited by independent public accountants selected by the Issuer, and to discuss
its affairs, finances and accounts relating to the Contracts with its officers,
employees and independent certified public accountants, all at such reasonable
times and as often as may be reasonably requested. Any expense incident to the
exercise by the Issuer, the Insurer or the Indenture Trustee of any right under
this paragraph 7.07 shall be borne by the Servicer. The Servicer shall allow
such examination within two Business Days of receipt of the required notice if
so requested by the requesting party.
7.08. POWERS OF ATTORNEY. The Issuer shall, from time to time, provide
to the employees of the Servicer and the Indenture Trustee limited, revocable
powers of attorney or other such written authorizations as may be appropriate to
enable the Servicer and the Indenture Trustee to perform its respective
obligations under this Servicing Agreement and the Indenture; provided however,
that the Issuer shall not be required to provide such powers with respect to any
matter for which the Issuer does not have authority to perform itself.
7.09. ASSIGNMENT AND BINDING EFFECT. Except with respect to the pledge
of its rights under this Servicing Agreement by the Issuer to the Indenture
Trustee pursuant to the Indenture
37
and as expressly provided herein, this Servicing Agreement may be assigned by
the Issuer only with the written consent of the parties hereto and the Insurer
or, if an Insurer Default has occurred and is continuing, Noteholders evidencing
not less than 51% of the Note Balance; however, in the event of an assignment,
all provisions of this Servicing Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto.
7.10. CAPTIONS. The article, paragraph and other headings contained in
this Servicing Agreement are for reference purposes only, and shall not limit or
otherwise affect the meaning hereof.
7.11. COUNTERPARTS. This Servicing Agreement may be executed in any
number of counterparts, each of which counterparts shall be deemed to be an
original, and such counterparts shall constitute but one and the same
instrument.
7.12. GOVERNING LAW. This Servicing Agreement shall be deemed entered
into under and shall be governed by and interpreted in accordance with the laws
of the State of Texas, except to the extent that it is mandatory that the laws
of some other jurisdiction apply.
7.13. PARTIES. Except as set forth in Section 7.16 hereof, this
Servicing Agreement shall inure solely to the benefit of and shall be binding
upon the parties hereto, and their respective successors, legal representatives
and assigns, and no other person shall have or be construed to have any
equitable right, remedy or claim under or in respect of or by virtue of this
Servicing Agreement or any provision contained herein.
7.14. RELATIONSHIP OF THE PARTIES. The relationship of the parties to
this Servicing Agreement is that of independent contractors. Neither this
Servicing Agreement nor any of the activities contemplated hereby shall be
deemed to create any partnership, joint venture, agency or employer/employee
relationship among the Back-up Servicer, the Servicer and the Issuer.
7.15. NO BANKRUPTCY PETITION AGAINST THE ISSUER OR DEPOSITOR. The
Back-up Servicer, the Servicer and the Indenture Trustee agree that, prior to
the date that is one year and one day after the payment in full of the Notes,
none of them will institute against the Issuer, or join any other Person in
instituting against the Issuer or the Depositor, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other proceedings under
the laws of the United States or any state of the United States. This Section
7.15 shall survive the termination of this Servicing Agreement.
7.16. THIRD PARTY BENEFICIARIES. This Servicing Agreement shall inure to
the benefit of the Noteholders and the Insurer and their respective successors
and assigns. Without limiting the generality of the foregoing, all covenants and
agreements in this Servicing Agreement which expressly confer rights upon the
Insurer or the Noteholders shall be for the benefit of and run directly to them,
and each shall be entitled to rely on and enforce such covenants to the same
extent as if it were a party hereto. Notwithstanding the foregoing, the
Noteholder shall have no rights to enforce the provisions of this Servicing
Agreement so long as there is no Insurer Default that is continuing.
38
7.17. OTHER AGREEMENTS. The Servicer and the Back-up Servicer will not
be obligated or bound by any provision or term of any other agreement, including
the Indenture and the Sale and Allocation Agreement, except to the extent, and
only to the extent, expressly stated herein or therein.
7.18. PROCEDURE FOR INDEMNIFICATION. Notwithstanding anything to the
contrary in this Servicing Agreement, in the event that a Person is entitled to
indemnification pursuant to the terms of this Servicing Agreement, such Person
(hereinafter called the "Indemnified Party") shall promptly notify the person
against whom such indemnity may be sought (hereinafter called the "Indemnifying
Party") in writing and the Indemnifying Party, upon request of the Indemnified
Party, shall retain counsel reasonably satisfactory to the Indemnified Party or,
at the Indemnified Party's option, such Indemnified Party may select its own
counsel with the consent of the Indemnifying Party, which consent shall not be
unreasonably withheld or delayed, to represent the Indemnified Party and any
others the Indemnified Party may designate in such proceeding and shall pay the
reasonable fees and disbursements of such counsel related to such proceeding. It
is understood that the Indemnifying Party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm at any one time (in
addition to any local counsel) for all such Indemnified Parties (unless
necessary because of conflicts of interest), and all such fees and expenses
shall be reimbursed as they are incurred. Such firm shall be designated in
writing by the Indemnified Party. The Indemnifying Party shall not be liable for
any settlement of any proceeding effected without its written consent, which
consent shall not be unreasonably withheld or delayed, but if settled with such
consent or if there be an adverse final judgment, the Indemnifying Party agrees
to indemnify the Indemnified Party from and against any loss or liability by
reason of such settlement or judgment.
7.19. RESERVED.
7.20. PURCHASE AND SUBSEQUENT PLEDGE. The Servicer hereby acknowledges
that the Issuer will acquire the Contracts and the other items included in the
Collateral pursuant to the Sale and Allocation Agreement and will pledge the
Contracts and the other items included in the Collateral along with the Issuer's
rights under this Servicing Agreement and the Sale and Allocation Agreement to
the Indenture Trustee for the benefit of the Secured Parties pursuant to the
terms of the Indenture, and that the representations and warranties contained in
the Sale and Allocation Agreement, this Servicing Agreement and the Indenture
and the rights of the Issuer under the Indenture, this Servicing Agreement and
the Sale and Allocation Agreement are intended to benefit the Noteholders and
the Insurer.
7.21. EXERCISE OF RIGHTS BY INSURER. All rights granted to the Insurer
pursuant to this Servicing Agreement shall terminate during the pendency of an
Insurer Default and during such time the Insurer's rights may be exercised by
Noteholders evidencing not less than 51% of the Note Balance, PROVIDED, HOWEVER,
the Insurer's rights shall be reinstated in full, immediately upon the cure of
such Insurer Default.
39
7.22 LIMITATION OF LIABILITY. Notwithstanding any other provision herein
or elsewhere, this Servicing Agreement has been executed and delivered by
Bankers Trust (Delaware), not in its individual capacity, but solely in its
capacity as Owner Trustee of the Issuer, in no event shall Bankers Trust
(Delaware) or the Owner Trustee have any liability in respect of the
representations, warranties, or obligations of the Issuer hereunder or under any
other Transaction Document and for all purposes of this Agreement and each other
Transaction Document the Owner Trustee and Bankers Trust (Delaware) shall be
entitled to the benefits of the Trust Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
40
IN WITNESS WHEREOF, the Issuer, the Back-up Servicer, the Servicer, the
Depositor, and the Indenture Trustee have caused this Servicing Agreement to be
duly executed by their respective authorized officers as of the date and year
first above written.
First Investors Auto Owner Trust 2000-A, as Issuer
By: Bankers Trust (Delaware), not in its individual capacity
but solely as Owner Trustee on behalf of the Trust
By: ______________________________
Name:
Title:
Norwest Bank Minnesota, National Association, not in its
individual capacity but solely as Back-up Servicer
By: ______________________________
Name:
Title:
Norwest Bank Minnesota, National Association, not in its
individual capacity but solely as Indenture Trustee
By: ______________________________
Name:
Title:
First Investors Servicing Corporation, as Servicer
By: _______________________________
Bennie H. Duck, Vice President
First Investors Auto Investment Corp., as Depositor
By: _______________________________
Bennie H. Duck, Vice President
MONTHLY SERVICER REPORT
FIRST INVESTORS AUTO OWNER TRUST 2000-A
Determination Date
Payment Date
Collection Period
================================================================================
COLLATERAL BALANCES
Beginning Pool Balance
Scheduled Principal Received
Contracts Defaulted During Collection Period
Ending Pool Balance 0
================================================================================
AVAILABLE FUNDS
Principal Cash Received
Interest, Fees and other amounts Received on Contracts
Liquidation Proceeds
Interest Earned on Collection Accounts
Purchase Amounts
Available Funds 0
Reserve Account Draw Amount
Total Available Funds 0
Policy Claim Amount
================================================================================
ALLOCATION OF AVAILABLE FUNDS ---------
Trustee Fee
Trustee Expenses
Back-up Servicing Fee
Back-up Servicer Expenses
Total Servicing Fee to Servicer
Monthly Note Interest
Unreimbursed payments to Insurer
If notes accelerated, to the Note Payment Account
Deposit to Reserve Account
Any other amounts due under Transaction Documents
Distribution to the Depositor
================================================================================
RESERVE ACCOUNT:
Beginning Reserve Account Amount
Reserve Account Draw Amount
Deposits to Reserve Account
Interest Earned
Ending Reserve Account Amount 0
Required Reserve Account Amount
Excess (Deficiency) 0
================================================================================
NOTE INFORMATION
Original Note Balance
Beginning Note Balance
Monthly Note Principal
Ending Note Balance
Note Pool Factor #DIV/0!
Monthly Note Interest
================================================================================
DELINQUENCY INFORMATION:
% of Total
Principal Principal
Number Balance Balance
--------------------------------
Contracts current to 30 days delinquent #DIV/0!
--------------------------------
Contracts 31 to 60 days delinquent #DIV/0!
--------------------------------
Contracts 61 to 90 days delinquent #DIV/0!
--------------------------------
Contracts more than 90 days delinquent #DIV/0!
--------------------------------
Total 0 0 #DIV/0!
================================================================================
DELINQUENCY RATIO:
Prin Balance Ending Prin
of Delinquent Balance of Delinquency
Contracts all Contracts Ratio
-----------------------------------------
Collection Period #DIV/0!
-----------------------------------------
Previous Collection Period #DIV/0!
-----------------------------------------
Second Preceding Collection Period #DIV/0!
-----------------------------------------
three month average Delinquency Ratio #DIV/0!
-----------------------------------------
================================================================================
OTHER FINANCIAL COVENANTS OF FIFSG:
A. Minimum GAAP Equity as % of GAAP Equity as of the most recent quarter
total portfolio end
-----------
Aggregate balance of on-balance sheet
receivables
-----------
Ratio of GAAP Equity/receivables #DIV/0!
Previous Current 6 Month
Quarter Quarter Total
B. Minimum EBITDA Coverage EBITDA 0
Interest Expense 0
Ratio of EBITDA/Interest Expense #DIV/0!
CONTRACT CHARACTERISTICS:
weighted average APR of the Contracts ---------
weighted average remaining term to maturity of the Contracts (months)
================================================================================
TRIGGER EVENTS (A "Y" in any box below indicates that a Trigger Event has
occurred):
RE-LIENING TRIGGERS
Has any event listed under "Re-Liening Trigger" in section 1.1 of the
Indenture occurred (Y or N)
RESERVE ACCOUNT INCREASE EVENT
Is the three month average Delinquency Ratio greater than 6% in months 1-12
or 7.5% thereafter? (Y or N)
Is the Cumulative Net Loss Rate greater than the corresponding percentage
designated below? (Y or N)
EVENT OF DEFAULT
Is the three month average Delinquency Ratio greater than 7% in months 1-12
or 8.5% thereafter? (Y or N)
Is the Cumulative Net Loss Rate greater than the corresponding percentage
designated below? (Y or N)
Maximum Level
--------------------------
Month Cumulative Reserve
after Net Loss Account Event of
closing Percentage Increase Event Default
-------- ---------- -------------- --------
3 -- 0.20% 0.25%
6 -- 1.50% 1.80%
9 -- 2.50% 3.00%
12 -- 3.60% 4.30%
15 -- 4.60% 5.60%
18 -- 5.50% 6.60%
21 -- 6.10% 7.40%
24 -- 6.70% 8.20%
27 -- 7.30% 8.80%
30 -- 7.80% 9.50%
33 -- 8.20% 10.00%
36 -- 8.50% 10.40%
39 -- 8.80% 10.70%
42 -- 9.00% 11.00%
45 -- 9.10% 11.10%
Has FIFSG failed to maintain a minimum GAAP Equity as a % of on-balance
sheet receivables of 10%? (Y or N)?
Has FIFSG failed to maintain a minimum EBITDA coverage of 1.1 to 1 (Y or N)?
Has any other event listed in Article V of the Indenture occurred? (Y or N)
================================================================================
IN WITNESS WHEREOF, THE UNDERSIGNED HAS DULY EXECUTED AND DELIVERED THIS
MONTHLY SERVICER REPORT AS DATED ABOVE.
FIRST INVESTORS SERVICING CORPORATION, AS SERVICER
BY:
NAME:
TITLE:
EXHIBIT A-2
CERTIFICATE OF OFFICER
FIRST INVESTORS SERVICING CORPORATION
The undersigned, a duly elected and qualified Officer of First Investors
Servicing Corporation, makes this certificate pursuant to Section 2.02(c) of the
Servicing Agreement dated as of January 1, 2000 by and among First Investors
Auto Owner Trust 2000-A, as Issuer, Norwest Bank Minnesota, National
Association, as Back-up Servicer and Indenture Trustee, First Investors Auto
Investment Corp., as Depositor and First Investors Servicing Corporation, as
Servicer, and does hereby certify to the best of his knowledge that the attached
monthly Servicer report hereby being furnished to the Indenture Trustee pursuant
to Section 2.02 (c) has been prepared in accordance with the terms and
conditions of the Transaction Documents, is true and correct in all material
respects and presents fairly the results covered thereby for the Collection
Period ended ______________________. This certification is being provided as of
the Determination Date of _____________________.
By:__________________________________
Authorized Officer
EXHIBIT B
MONTHLY VERIFICATION CERTIFICATE
FIRST INVESTORS AUTO OWNER TRUST 2000-A
Date:
TO: DISTRIBUTION LIST ATTACHED
RE:
This certificate is furnished pursuant to Section 2.02(d) of the
Servicing Agreement (Agreement), dated January 1, 2000, by Norwest Bank
Minnesota, National Association (the Back-up Servicer) as the Back-up Servicer
for the above-entitled issue. Terms used but not defined herein shall have the
meanings provided in the Agreement. The Back-up Servicer has made no independent
examination of the Monthly Servicer Report beyond the review specifically
required in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am a duly elected Corporate Trust Officer of Norwest Bank Minnesota,
National Association. (Back-up Servicer).
2. The file received by the Back-up Servicer on [insert date], is in readable
and usable form.
3. The Back-up Servicer has verified that the following obtained from the file
is in agreement with amount for such items reported in the Monthly Statement
with respect to the month ending [insert date], except as noted on the attached
report:
(i) Aggregate Principal balance of Contracts
(ii) Delinquency ratio
(iii) Average delinquency Ratio
(iv) Cumulative Net Loss Ratio
The foregoing certifications are delivered this [insert date].
_______________________________
Name:
Title: