EXHIBIT 10.67
EXECUTION COPY
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MBIA INSURANCE CORPORATION,
as Insurer
FIRST INVESTORS FINANCIAL SERVICES, INC.,
as Seller
and
BANC OF AMERICA SECURITIES LLC,
as Initial Purchaser
INDEMNIFICATION AGREEMENT
First Investors Auto Owner Trust 2000-A
$167,969,000
7.174% Asset-Backed Notes
Dated as of January 12, 2000
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TABLE OF CONTENTS
Section 1. Definitions.............................................1
Section 2. Representations and Warranties of the Insurer...........2
Section 3. Agreements, Representations and Warranties of
the Initial Purchaser.................................3
Section 4. Agreements, Representations and Warranties of
the Seller............................................4
Section 5. Indemnification.........................................5
Section 6. Notice To Be Given......................................5
Section 7. Contribution............................................7
Section 8. Notices.................................................9
Section 9. Governing Law, Etc......................................9
Section 10. Insurance Agreement; Purchase Agreement; Sale
and Allocation Agreement..............................9
Section 11. Limitations.............................................9
Section 12. Counterparts...........................................10
Section 13. Nonpetition............................................10
TESTIMONIUM
SIGNATURES AND SEALS
INDEMNIFICATION AGREEMENT
This Agreement, dated as of January 12, 2000, is by and among MBIA
Insurance Corporation (the "Insurer"), as the Insurer under the Note Guaranty
Insurance Policy (the "Policy") issued in connection with the Notes described
below, First Investors Financial Services, Inc. (the "Seller") and Banc of
America Securities LLC (the "Initial Purchaser").
Section 1. DEFINITIONS. As used in this Agreement, the following terms
shall have the respective meanings stated herein, unless the context clearly
requires otherwise, in both singular and plural form, as appropriate.
Capitalized terms used in this Agreement but not otherwise defined herein will
have the meanings ascribed to such terms in the Indenture (as described below).
"ACT" means the Securities Act of 1933, as amended, together with all
related rules and regulations.
"AGREEMENT" means this Indemnification Agreement by and among the
Insurer, the Seller and the Initial Purchaser.
"INDEMNIFIED PARTY" means any party entitled to any indemnification
pursuant to Section 5 below, as the context requires.
"INDEMNIFYING PARTY" means any party required to provide indemnification
pursuant to Section 5 below, as the context requires.
"INDENTURE" means the Indenture dated January 1, 2000 between the
Issuer, the Seller and the Indenture Trustee as the same may be amended or
supplemented from time to time in accordance with the terms thereof.
"INITIAL PURCHASER PARTY" means the Initial Purchaser and its parent,
subsidiaries and affiliates and any shareholder, director, officer, employee,
agent or "controlling person" (as such term is used in the Act) of any of the
foregoing.
"INSURANCE AGREEMENT" means the Insurance Agreement, dated as of January
1, 2000, by and among the Insurer, the Servicer, the Seller, as Seller and as
Administrator, First Investors Auto Investment Corp., as Depositor, First
Investors Auto Owner Trust 2000-A, as Issuer, Bankers Trust (Delaware), as Owner
Trustee and Norwest Bank Minnesota, National Association, as Back-up Servicer
and Indenture Trustee (the "Indenture Trustee").
"INSURER PARTY" means the Insurer and its respective parents,
subsidiaries and affiliates and any shareholder, director, officer, employee,
agent or any "controlling person" (as such term is used in the Act) of any of
the foregoing.
"LOSSES" means (i) any actual out-of-pocket loss paid by the party
entitled to indemnification or contribution hereunder and (ii) any actual
out-of-pocket costs and expenses paid by such party, including reasonable fees
and expenses of its counsel, to the extent not paid, satisfied or reimbursed
from funds provided by any other Person (provided that the foregoing shall not
create or imply any obligation to pursue recourse against any such other
Person).
"NOTES" means the First Investors Auto Owner Trust 2000-A $167,969,000
7.174% Asset-Backed Notes issued pursuant to the Indenture.
"OFFERING MEMORANDUM" means the offering memorandum dated January 12,
2000 in respect of the Notes (and any amendment or supplement thereto.)
"PERSON" means any individual, partnership, joint venture, corporation,
trust or unincorporated organization or any government or agency or political
subdivision thereof.
"PURCHASE AGREEMENT" means the Purchase Agreement by and between the
Initial Purchaser and the Depositor, dated January 12, 2000.
"SALE AND ALLOCATION AGREEMENT" means the Sale and Allocation Agreement,
dated as of January 1, 2000, by and among the Seller, the Servicer, the
Depositor, the Indenture Trustee and the Issuer.
"SELLER PARTY" means the Seller, each of its parents, subsidiaries and
affiliates and any shareholder, director, officer, employee, agent or any
"controlling person" (as such term is used in the Act) of any of the foregoing.
"SERVICER" means First Investors Servicing Corporation, as Servicer.
Section 2. REPRESENTATIONS AND WARRANTIES OF THE INSURER. The Insurer
represents and warrants to the Initial Purchaser and the Seller as follows:
(a) ORGANIZATION AND LICENSING. The Insurer is a duly
incorporated and existing New York stock insurance company licensed to
do business in the State of New York and is in good standing under the
laws of such state.
(b) CORPORATE POWER. The Insurer has the corporate power and
authority to issue the Policy and execute and deliver this Agreement and
the Insurance Agreement and to perform all of its obligations hereunder
and thereunder.
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(c) AUTHORIZATION; APPROVALS. The issuance of the Policy and the
execution, delivery and performance of this Agreement and the Insurance
Agreement have been duly authorized by all necessary corporate
proceedings. No further approvals or filings of any kind, including,
without limitation, any further approvals of or further filings with any
governmental agency or other governmental authority, or any approval of
the Insurer's board of directors or stockholders, are necessary for the
Policy, this Agreement and the Insurance Agreement to constitute the
legal, valid and binding obligations of the Insurer.
(d) ENFORCEABILITY. The Policy, when issued, and this Agreement
and the Insurance Agreement will each constitute legal, valid and
binding obligations of the Insurer, enforceable in accordance with their
terms, subject to applicable laws affecting the enforceability of
creditors' rights generally.
(e) FINANCIAL INFORMATION. The consolidated financial statements
of the Insurer as of December 31, 1997 and December 31, 1998 and for the
three years ended December 31, 1998 incorporated by reference in the
Offering Memorandum (the "Insurer Audited Financial Statements"), fairly
present in all material respects the financial condition of the Insurer
as of such date and for the period covered by such statements in
accordance with generally accepted accounting principles consistently
applied. The consolidated financial statements of the Insurer and its
subsidiaries as of September 30, 1999 incorporated by reference in the
Offering Memorandum (the "Insurer Unaudited Financial Statements")
present fairly in all material respects the financial condition of the
Insurer as of such date and for the period covered by such statements in
accordance with generally accepted accounting principles applied in a
manner consistent with the accounting principles used in preparing the
Insurer Audited Financial Statements, and, since September 30, 1999
there has been no material change in such financial condition of the
Insurer which would materially and adversely affect its ability to
perform its obligations under the Policy.
(f) INSURER INFORMATION. The information in the Offering
Memorandum as of the date hereof under the caption "DESCRIPTION OF THE
INSURER AND THE INSURANCE POLICY" (the "Insurer Information") is limited
and does not purport to provide the scope of disclosure required to be
included in a prospectus for a registrant under the Securities Act of
1933, in connection with the public offer and sale of securities of such
registrant. Within such limited scope of disclosure, the Insurer
Information does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading.
(g) NO LITIGATION. There are no actions, suits, proceedings or
investigations pending or, to the best of the Insurer's knowledge,
threatened against it at law or in equity or before or by any court,
governmental agency, board or commission or any arbitrator
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which, if decided adversely, would materially and adversely affect its
condition (financial or otherwise) or its operations or would materially
and adversely affect its ability to perform its obligations under this
Agreement, the Policy or the Insurance Agreement.
Section 3. AGREEMENTS, REPRESENTATIONS AND WARRANTIES OF THE INITIAL
PURCHASER. The Initial Purchaser represents and warrants to and agrees with the
Seller and the Insurer that the statements in the Offering Memorandum made in
reliance upon and in conformity with written information relating to the Initial
Purchaser furnished to the Seller specifically for use in the preparation of the
Offering Memorandum, and acknowledged in writing (referred to herein as the
"Initial Purchaser Information"), are true and correct in all material respects.
Section 4. AGREEMENTS, REPRESENTATIONS AND WARRANTIES OF THE SELLER. The
Seller represents, warrants to and agrees with the Insurer and the Initial
Purchaser as follows:
(a) OFFERING MEMORANDUM. The information in the Offering
Memorandum, other than the Insurer Information and the Initial Purchaser
Information, is true and correct in all material respects and does not
contain any untrue statement of a fact that is material or omit to state
a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(b) ORGANIZATION. The Seller is duly incorporated and existing
under the laws of the State of Texas and is in good standing as a
foreign corporation in each jurisdiction in which the nature of its
business, or the properties owned or leased by it, makes such
qualification necessary.
(c) CORPORATE POWER. The Seller has the corporate power and
authority to execute and deliver this Agreement, the Indenture, the Sale
and Allocation Agreement and the Insurance Agreement and to perform all
of its obligations hereunder and thereunder in all material respects.
(d) AUTHORIZATION; APPROVALS. The execution, delivery and
performance of this Agreement, the Sale and Allocation Agreement, the
Indenture and the Insurance Agreement by the Seller have been duly
authorized by all necessary corporate proceedings. No further approvals
or filings of any kind, including, without limitation, any further
approvals of or further filing with any governmental agency or other
governmental authority, or any approval of the Seller's board of
directors or stockholders, are necessary for this Agreement, the Sale
and Allocation Agreement, the Indenture and the Insurance Agreement to
constitute the legal, valid and binding obligations of the Seller.
(e) ENFORCEABILITY. This Agreement, the Sale and Allocation
Agreement, the Indenture and the Insurance Agreement will each
constitute legal, valid and binding obligations of the Seller,
enforceable in accordance with their terms, subject, as to the
enforcement of remedies, to bankruptcy, insolvency, reorganization,
moratorium and other
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similar laws affecting the enforceability of creditors' rights generally
applicable in the event of the bankruptcy, insolvency or reorganization
of the Seller and to general principles of equity.
(f) NO LITIGATION. There are no actions, suits, proceedings or
investigations pending or, to the best of the Seller's knowledge,
threatened against it at law or in equity or before any court,
governmental agency, board or commission or any arbitrator which, if
decided adversely, would materially and adversely affect its condition
(financial or otherwise) or its operations or would materially and
adversely affect its ability to perform its obligations under this
Agreement, the Indenture, the Sale and Allocation Agreement or the
Insurance Agreement.
Section 5. INDEMNIFICATION.
(a) The Insurer hereby agrees, upon the terms and subject to the
conditions of this Agreement, to indemnify, defend and hold harmless
each Seller Party and each Initial Purchaser Party against any and all
Losses incurred by them with respect to the offer and sale of any of the
Notes and resulting from the Insurer's breach of any of its
representations and warranties set forth in Section 2 of this Agreement.
(b) The Initial Purchaser Party hereby agrees, upon the terms
and subject to the conditions of this Agreement, to indemnify, defend
and hold harmless each Insurer Party against any and all Losses incurred
by it with respect to the offer and sale of any of the Notes which
results from the Initial Purchaser's breach of any of its
representations and warranties set forth in Section 3 of this Agreement.
(c) The Seller hereby agrees, upon the terms and subject to the
conditions of this Agreement, to indemnify, defend and hold harmless
each Insurer Party and Initial Purchaser Party against any and all
Losses incurred by it with respect to the offer and sale of any of the
Notes and resulting from the Seller's breach of any of its
representations and warranties set forth in Section 4 of this Agreement.
(d) Upon the incurrence of any Losses entitled to
indemnification hereunder, the Indemnifying Party shall reimburse the
Indemnified Party promptly upon establishment by the Indemnified Party
to the Indemnifying Party of the Losses incurred.
Section 6. NOTICE TO BE GIVEN.
(a) Except as provided in Section 7 below with respect to
contribution, the indemnification provided herein by the Indemnifying
Party shall be the exclusive remedy of each Indemnified Party for the
Losses resulting from the Indemnifying Party's breach of a
representation, warranty or agreement hereunder; provided, however, that
each Indemnified Party shall be entitled to pursue any other remedy at
law or in equity for any
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such breach so long as the damages sought to be recovered shall not
exceed the Losses incurred thereby resulting from such breach.
(b) In the event that any action or regulatory proceeding shall
be commenced or claim asserted which may entitle an Indemnified Party to
be indemnified under this Agreement, such party shall give the
Indemnifying Party written or facsimile notice of such action or claim
reasonably promptly after receipt of written notice thereof.
(c) Upon request of the Indemnified Party, the Indemnifying
Party shall retain counsel reasonably satisfactory to the Indemnified
Party to represent the Indemnified Party and any others the Indemnifying
Party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. The
Indemnifying Party may, at its option, at any time upon written notice
to the Indemnified Party, assume the defense of any proceeding and may
designate counsel reasonably satisfactory to the Indemnified Party in
connection therewith, provided that the counsel so designated would have
no actual or potential conflict of interest in connection with such
representation. Unless it shall assume the defense of any proceeding the
Indemnifying Party shall not be liable for any settlement of any
proceeding, effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
Indemnifying Party agrees to indemnify the Indemnified Party from and
against any loss or liability by reason of such settlement or judgment.
The Indemnifying Party shall be entitled to participate in the defense
of any such action or claim in reasonable cooperation with, and with the
reasonable cooperation of, each Indemnified Party.
(d) The Indemnified Party will have the right to employ its own
counsel in any such action, but the fees and expenses of such counsel
will be at the expense of such Indemnified Party unless (i) the
employment of counsel by the Indemnified Party at the Indemnifying
Party's expense has been authorized in writing by the Indemnifying
Party, (ii) the Indemnifying Party has not in fact employed counsel to
assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action or (iii) the named
parties to any such action include the Indemnifying Party on the one
hand and, on the other hand, the Indemnified Party, and representation
of both parties by the same counsel would be inappropriate due to actual
or potential differing interests between them (in which case if such
Indemnified Party notifies the Indemnifying Party in writing that it
elects to employ separate counsel at the expense of the Indemnifying
Party, the Indemnifying Party shall not have the right to assume the
defense of such action or proceeding on such Indemnified Party's
behalf), in each of which cases the reasonable fees and expenses of
counsel (including local counsel) will be at the expense of the
Indemnifying Party, and all such fees and expenses will be reimbursed
promptly as they are incurred. In the event that any expenses so paid by
the Indemnifying Party are subsequently determined not to be required to
be borne by the Indemnifying Party hereunder, the party which received
such payment shall promptly refund to the
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Indemnifying Party the amount so paid by such Indemnifying Party.
Notwithstanding the foregoing, in connection with any one action or
separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances, the Indemnifying Party shall not be liable for the fees
and expenses of more than one counsel for all Seller Parties, more than
one counsel for all Initial Purchaser Parties and more than one counsel
for all Insurer Parties, as applicable.
(e) The Indemnified Parties shall cooperate with the
Indemnifying Parties in resolving any event which would give rise to an
indemnity obligation pursuant to Section 5 hereof in the most efficient
manner.
(f) No settlement of any such claim or action shall be entered
into without the consent of each Indemnified Party who is subject to
such claim or action, on the one hand, and each Indemnifying Party who
is subject to such claim or action, on the other hand; provided,
however, that the consent of such Indemnified Party shall not be
required if such settlement fully discharges, with prejudice against the
plaintiff, the claim or action against such Indemnified Party.
(g) Any failure by an Indemnified Party to comply with the
provisions of this Section shall relieve the Indemnifying Party of
liability only if such failure is materially prejudicial to any legal
pleadings, grounds, defenses or remedies in respect thereof or the
Indemnifying Party's financial liability hereunder, and then only to the
extent of such prejudice.
Section 7. CONTRIBUTION.
(a) To provide for just and equitable contribution if the
indemnification provided by the Insurer is determined to be unavailable
for any Initial Purchaser Party (other than pursuant to Section 5 or 6
of this Agreement), or if the indemnification provided by the Initial
Purchaser is determined to be unavailable for any Insurer Party (other
than pursuant to Section 5 or 6 of this Agreement), the Insurer and the
Initial Purchaser shall contribute to the aggregate costs of liabilities
arising from any breach of their respective representations and
warranties set forth in this Agreement on the basis of the relative
fault of all Insurer Parties and all Initial Purchaser Parties.
(b) To provide for just and equitable contribution if the
indemnification provided by the Insurer is determined to be unavailable
for any Seller Party (other than pursuant to Section 5 or 6 of this
Agreement), or if the indemnification provided by the Seller is
determined to be unavailable for any Insurer Party (other than pursuant
to Section 5 or 6 of this Agreement), the Insurer and the Seller shall
contribute to the aggregate cost of liabilities arising from any breach
of their respective representations and warranties set forth in this
Agreement on the basis of the relative fault of all Insurer Parties and
all Seller Parties.
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(c) To provide for just and equitable contribution if the
indemnification provided by the Seller is determined to be unavailable
for any Initial Purchaser Party (other than pursuant to Section 5 or 6
of this Agreement), the Seller and the Initial Purchaser shall
contribute to the aggregate cost of liabilities arising from any breach
of their respective representations and warranties set forth in this
Agreement on the basis of the relative fault of all Initial Purchaser
Parties and all Seller Parties.
(d) The relative fault of each Indemnifying Party, on the one
hand, and of each Indemnified Party, on the other hand, shall be
determined by reference to, among other things, whether the breach of,
or alleged breach of, any of its representations and warranties set
forth in Section 2, 3 or 4 of this Agreement relates to information
supplied by, or action within the control of, the Indemnifying Party or
the Indemnified Party and the Parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such breach.
(e) The parties agree that the Insurer shall be solely
responsible for the Insurer Information and for the Insurer Financial
Statements, that the Initial Purchaser shall be solely responsible for
the Initial Purchaser Information provided by the Initial Purchaser in
writing for use in the Offering Memorandum and that the Seller shall be
responsible for all other information in the Offering Memorandum.
(f) No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
(g) The indemnity and contribution agreements contained in this
Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any Initial
Purchaser Party, any Seller Party or any Insurer Party, (ii) the
issuance of any Notes or the Policy or (iii) any termination of this
Agreement.
(h) Upon the incurrence of any Losses entitled to contribution
hereunder, the contributor shall reimburse the party entitled to
contribution promptly upon establishment by the party entitled to
contribution to the contributor of the Losses incurred.
(i) Notwithstanding anything in this Section 7 to the contrary,
(i) the Insurer shall not be required to contribute an amount in excess
of the amount by which the total of the insurance premiums that have
been received by the Insurer under the Insurance Agreement exceeds the
amount of any damages that the Insurer has otherwise been required to
pay in respect of any breach by the Insurer of the representations and
warranties contained in Section 2 hereof, and (ii) the Initial Purchaser
shall not be required to contribute an amount in excess of the amount by
which the total underwriting fees, discounts and commissions received by
the Initial Purchaser in connection with the resale of the Notes exceeds
the amount of any damages that the Initial Purchaser has otherwise
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been required to pay in respect of any breach by the Initial Purchaser
of the representations and warranties contained in Section 3 hereof.
Section 8. NOTICES. All notices and other communications provided for
under this Agreement shall be addressed to the address set forth below as to
each party or at such other address as shall be designated by a party in a
written notice to the other party.
If to the Insurer: MBIA Insurance Corporation
113 King Street
Armonk, NY 10504
Attention: Insured Portfolio Management--Structured
Finance (IPM-SF)
If to the Seller: First Investors Financial Services, Inc.
675 Bering Drive, Suite 710
Houston, TX 77057
Attention: Mr. Tommy Moore
If to the Placement Banc of America Securities LLC
Agent: 100 North Tryon Street
NC1-007-10-07
Charlotte, NC 28255
Attention: Mr. Curt Sidden,
Global Asset-Backed Securitization
Section 9. GOVERNING LAW, ETC. This Agreement shall be deemed to be a
contract under the laws of the State of New York and shall be governed by and
construed in accordance with the laws of the State of New York without regard to
its conflicts of laws provisions. This Agreement may not be assigned by any
party without the express written consent of each other party. Amendments of
this Agreement shall be in writing signed by each party. This Agreement shall
not be effective until executed by each of the Insurer, the Seller and the
Initial Purchaser.
Section 10. INSURANCE AGREEMENT; PURCHASE AGREEMENT; SALE AND ALLOCATION
AGREEMENT. This Agreement in no way limits or otherwise affects the
indemnification obligations of the Seller, if any, under (a) the Insurance
Agreement, (b) the Indenture, (c) the Purchase Agreement or (d) the Sale and
Allocation Agreement. To the extent that this Agreement conflicts with or does
not address the relative rights of the Initial Purchaser and Seller as between
themselves as set forth in the Purchase Agreement, the Purchase Agreement shall
govern.
Section 11. LIMITATIONS. Nothing in this Agreement shall be construed as
a representation or undertaking by the Insurer concerning maintenance of the
rating currently assigned to its claims-paying ability by Moody's Investors
Service, Inc. ("Moody's") and/or
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Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies,
Inc. ("S&P") or any other rating agency (collectively, the "Rating Agencies").
Section 12. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall together constitute but one and the same
instrument.
Section 13. NONPETITION. So long as the Insurance Agreement is in
effect, and for one year following its termination, none of the parties hereto
will file any involuntary petition or otherwise institute any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding or other
proceeding under any federal or state bankruptcy or similar law against the
Issuer or the Depositor.
[Remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Indemnification
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized, all as of the date first above written.
MBIA INSURANCE CORPORATION
By ___________________________________
Assistant Secretary
FIRST INVESTORS FINANCIAL SERVICES,
INC.
By ___________________________________
Title ________________________________
BANC OF AMERICA SECURITIES LLC
By ___________________________________
Title ________________________________