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Am and Rst NIM Collateral Purchase Agreement.rtf
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KILPATRICK STOCKTON LLP
EXECUTION COPY
AMENDED AND RESTATED
NIM COLLATERAL PURCHASE AGREEMENT
AMENDED AND RESTATED NIM COLLATERAL Purchase Agreement, dated as of August
8, 2000, by and between FIRST INVESTORS SERVICING CORPORATION, a Delaware
corporation (f/k/a Auto Lenders Acceptance Corporation; "FISC" or a "SELLER"),
ALAC RECEIVABLES CORP. ("ALACRC" or a "SELLER" and together with FISC, the
"SELLERS") and FIFS ACQUISITION FUNDING COMPANY, L.L.C., a Delaware limited
liability company (the "PURCHASER").
RECITALS
WHEREAS, ALACRC is the owner of certain beneficial ownership interests
(the "CERTIFICATES") in the owner trusts (the "TRUSTS") issued pursuant to the
Trust Agreements identified in Appendix I attached hereto (the "TRUST
AGREEMENTS");
WHEREAS, ALACRC is the owner of certain rights in certain spread accounts
(the "SPREAD ACCOUNTS") and all monies, checks, securities, investments and
other documents related thereto (collectively, with the Spread Accounts, the
"SPREAD ACCOUNT COLLATERAL") created and described in the Master Spread Account
Agreement.
WHEREAS, ALACRC is the owner of certain rights to receive distributions in
respect of the Spread Accounts pursuant to Section 3.03(b) of the Master Spread
Account Agreement;
WHEREAS, FISC is the owner of certain Charged Off Receivables (as defined
herein);
WHEREAS, FISC is the servicer under the ALAC Securitizations and entitled
to receive from time to time under each of the Sale and Servicing Agreements
identified in Appendix I hereto (the "ALAC SALE AND SERVICING AGREEMENTS") the
Servicing Fee (as defined in each of the Sale and Servicing Agreements;
WHEREAS, the Purchaser and the Sellers entered into that certain Loan and
Security Agreement, dated as of October 2, 1998 among the Purchaser, as
borrower, First Union Securities, Inc. (f/k/a First Union Capital Markets, a
division of Wheat First Securities, Inc.,) as deal agent and documentation agent
("FUSI"), FISC, as servicer, ALACRC, as a seller and First Union National Bank,
as liquidity agent ("FUNB") (the "LOAN AGREEMENT");
WHEREAS, pursuant to the Loan Agreement, the Purchaser assigned its right,
title and interest in the Agreement Collateral (as defined below) to FUSI on
behalf of the Secured Parties (as defined in the Loan Agreement);
WHEREAS, all obligations of the Purchaser under the Loan Agreement shall
be paid in full on the Closing Date (as defined herein) and FUSI, as Deal Agent
under the Loan Agreement, shall cease to have a security interest in the
Agreement Collateral at such time;
WHEREAS, simultaneously herewith, the Purchaser and the Sellers will enter
into that certain Transfer and Servicing Agreement, dated as of August 8, 2000
by Project Brave Limited Partnership, as issuer (the "ISSUER"), FISC, as
servicer and a transferor party, ALACRC, as a transferor party, FUSI, as
collateral agent and deal agent, Wells Fargo Bank Minnesota, National
Association, as backup servicer, collateral custodian and as indenture trustee
(the "TRANSFER AND SERVICING AGREEMENT");
WHEREAS, pursuant to the Transfer and Servicing Agreement, the Purchaser
will sell, transfer, assign, set over and otherwise convey to the Issuer all of
its rights, title and interest to the Agreement Collateral;
WHEREAS, the parties to the Original Agreement (as defined below) desire
to amend and restate the Original Agreement in connection with the execution and
delivery of the Transfer and Servicing Agreement and the transactions
contemplated thereby;
NOW THEREFORE, in consideration of the foregoing, other good and valuable
consideration, and the mutual terms and covenants contained herein, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
All capitalized terms used but not otherwise defined herein shall have the
meanings given to such terms in the Transfer and Servicing Agreement (as defined
below). As used in this Agreement, the following terms shall, unless the context
otherwise requires, have the following meanings (such meanings to be equally
applicable to the singular and plural forms of the terms defined).
AGREEMENT: This Amended and Restated NIM Collateral Purchase Agreement as such
agreement may be amended, modified and/or restated.
AGREEMENT COLLATERAL: Collectively, the NIM Collateral and the Servicing Strips.
ALAC SECURITIZATION DOCUMENT: Any document delivered in connection with the ALAC
Securitizations and to which any Seller, as the case may be, is a party.
CHARGED OFF RECEIVABLE: Any Contract that, prior to the Original Closing Date,
has been charged-off by FISC in accordance with its credit and collection policy
and is listed on the Charged Off Receivables List.
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CHARGED OFF RECEIVABLES LIST: The list of Charged Off Receivables dated as of
the Original Closing Date, attached hereto as EXHIBIT A, as the same may be
amended, modified or supplemented.
CONTRACT: A retail installment sale contract for a Financed Vehicle and all
rights and obligations thereunder.
FINANCED VEHICLE: An automobile or light duty truck, together with all
accessories thereto, securing an Obligor's indebtedness under a Contract.
LOAN AGREEMENT: As defined in the RECITALS.
MASTER SPREAD ACCOUNT AGREEMENT: The Master Spread Account Agreement, dated as
of September 25, 1997 among ALACRC, Financial Security Assurance Inc. and
Norwest Bank Minnesota, National Association, as amended, supplemented, modified
or restated.
OBLIGOR: Any obligor under any Contract, whose recourse obligations thereunder
constitute a principal source of payments under any Contract, including any
guarantor of such obligations.
ORIGINAL AGREEMENT: The NIM Collateral Purchase Agreement, dated as of October
2, 1998, among FISC, ALACRC and the Purchaser.
PURCHASE PRICE: With respect to the Certificates, $16,610,000, with respect to
the Spread Account Collateral, $3,100,000, with respect to the Servicing Strips,
$10,000 and with respect to the Charged Off Receivables, $10,000.
SELLERS: FISC and ALACRC, as the case may be.
SERVICING STRIPS: Collectively, the Servicing Strip (Series 1997-1), the
Servicing Strip (Series 1998-1) and the Retained Pool Servicing Strip.
TRANSFER AND SERVICING AGREEMENT: As defined in the RECITALS.
ARTICLE II
PURCHASE AND SALE OF AGREEMENT COLLATERAL
2.1 TRANSFER OF AGREEMENT COLLATERAL.
(a) Subject to clause (b) below, each Seller hereby sells, transfers and
conveys to the Purchaser all of such Seller's right, title and interest in and
to the Agreement Collateral owned by such Seller as of the Original Closing
Date.
(b) With respect to the Servicing Strip (Series 1997-1) and the Servicing
Strip (Series 1998-1), the Purchaser shall not have the right to enforce payment
on any Servicing Fee (as
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defined under the ALAC Securitizations); PROVIDED, HOWEVER, FISC, as Servicer
under the ALAC Securitizations, shall use its best efforts to cause any
Servicing Fee to be paid without delay, set-off or any other reduction.
2.2 PAYMENT OF PURCHASE PRICE.
Pursuant to the Original Agreement, the Purchaser paid the Purchase Price
for such Agreement Collateral on the Original Closing Date in cash.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
The Purchaser hereby represents and warrants to the Sellers as of the date
hereof:
(a) ORGANIZATION, ETC. The Purchaser has been duly incorporated and is
validly existing as a limited liability company in good standing under the laws
of the State of Delaware, and has full corporate power and authority to execute
and deliver this Agreement and to perform the terms and provisions hereof.
(b) DUE AUTHORIZATION AND NO VIOLATION. This Agreement has been duly
authorized, executed and delivered by the Purchaser, and is the valid, binding
and enforceable obligation of the Purchaser 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. The
consummation of the transactions contemplated by this Agreement, and the
fulfillment of the terms thereof, will not conflict with or result in a breach
of any of the terms or provisions of, or constitute a default under (in each
case material to the Purchaser), or (except as contemplated by the Basic
Documents) result in the creation or imposition of any Lien, charge or
encumbrance (in each case material to the Purchaser) upon any of the property or
assets of the Purchaser pursuant to the terms of any indenture, mortgage, deed
of trust, loan agreement, guarantee, lease financing agreement or similar
agreement or instrument under which the Purchaser is a debtor or guarantor, nor
will such action result in any violation of the provisions of the Limited
Liability Company Agreement of the Purchaser.
(c) NO LITIGATION. No legal or governmental proceedings are pending to
which the Purchaser is a party or of which any property of the Purchaser is the
subject, and no such proceedings are threatened or contemplated by governmental
authorities or threatened by others other than such proceedings which will not
have a material adverse effect upon the general affairs, financial position, net
worth or results of operations (on an annual basis) of the Purchaser and will
not materially and adversely affect the performance by the Purchaser of its
obligations under, or the validity and enforceability of, this Agreement.
3.2 REPRESENTATIONS AND WARRANTIES OF THE SELLERS.
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(a) Each Seller hereby represents and warrants to the Purchaser as of the
date hereof:
(i) ORGANIZATION, ETC. It has been duly incorporated and is validly
existing under the laws of the jurisdiction of its incorporation and is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or the ownership of its
property requires such qualification.
(ii) POWER AND AUTHORITY. It has full power and authority to sell
and assign the property to be sold and assigned to the Purchaser hereunder
and has duly authorized such sale and assignment to the Purchaser by all
necessary corporate action. This Agreement has been duly authorized,
executed and delivered by such Seller and shall constitute the legal,
valid and binding obligation of such Seller 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.
(iii) NO VIOLATION. The consummation of the transactions
contemplated by this Agreement, and the fulfillment of the terms thereof,
will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under (in each case material to
such Seller and its respective subsidiaries considered as a whole), or
result in the creation or imposition of any adverse claim, charge or
encumbrance (in each case material to such Seller and its respective
subsidiaries considered as a whole) upon any of the property or assets of
such Seller pursuant to the terms of any indenture, mortgage, deed of
trust, loan agreement, guarantee, lease financing agreement or similar
agreement or instrument under which such Seller is a debtor or guarantor,
nor will such action result in any violation of the provisions of the
Certificate of Incorporation or the By-laws of such Seller.
(iv) NO PROCEEDINGS. No legal or governmental proceedings are
pending to which such Seller is a party or of which any property of such
Seller is the subject, and no such proceedings are threatened or
contemplated by governmental authorities or threatened by others, other
than such proceedings which will not have a material adverse effect upon
the validity or collectability of the portion of the Agreement Collateral
transferred by it hereunder, or upon the general affairs, financial
position, net worth or results of operations (on an annual basis) of such
Seller and its subsidiaries considered as a whole and will not materially
and adversely affect the performance by such Seller of its obligations
under, or the validity and enforceability of, this Agreement.
(v) Immediately prior to the Original Closing Date: (i) none of the
Agreement Collateral had been sold, assigned, or pledged by the Seller
owning such Agreement Collateral to any Person; (ii) each Seller had good
and marketable title thereto free and clear of any encumbrance, equity,
pledge, charge, claim or security interest; (iii) each Seller was the sole
owner thereof and had full right to sell the portion of the Agreement
Collateral transferred by it hereunder to the Purchaser and upon the sale
thereof to the
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Purchaser, the Purchaser will have good and marketable title thereto and
will own such Agreement Collateral free and clear of any encumbrances.
(vi) The chief executive office of FISC, the principal place of
business of FISC and the office where FISC keeps its records concerning
the Agreement Collateral for a period of not less than four (4) months
prior to August 8, 2000 have been located and shall be maintained, in the
State of Georgia. The chief executive office of ALACRC, the principal
place of business of ALACRC and the office where ALACRC, the principal
place of business of ALACRC and the office where ALACRC keeps its records
concerning the NIM Collateral for a period of not less than four (4)
months prior to August 8, 2000 have been located, and shall be maintained,
in the State of Georgia.
ARTICLE IV
CONDITIONS PRECEDENT
4.1 CONDITIONS PRECEDENT.
This effectiveness of this Agreement is subject to the following
conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES TRUE. The representations and
warranties of the Sellers hereunder shall be true and correct as of the Closing
Date.
(b) DOCUMENTS TO BE DELIVERED BY THE SELLERS.
(i) EVIDENCE OF UCC FILING. Each Seller shall have recorded and
filed, at its own expense, a UCC-1 financing statement in each
jurisdiction in which filing is required by applicable law, executed by
such Seller and naming the Purchaser as purchaser of the Agreement
Collateral transferred by such Seller, and the Collateral Agent, as
assignee, describing the Agreement Collateral transferred by such Seller
and the other property conveyed hereunder, meeting the requirements of the
laws of each jurisdiction and in such manner as is necessary to perfect
the sale, transfer, assignment and conveyance of such Contracts to the
Purchaser. The Sellers shall deliver to the Purchaser, Collateral Agent,
Indenture Trustee and Deal Agent a file-stamped copy, or other evidence
satisfactory to the Purchaser and the Deal Agent of such filing.
(ii) OTHER DOCUMENTS. All other documents in the possession of the
Sellers relating to the Contracts and any other document requested by the
Deal Agent to be delivered shall have been delivered by the Sellers.
(c) TRANSFER AND SERVICING AGREEMENT. The Transfer and Servicing Agreement
shall have been duly executed by each of the parties thereto.
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ARTICLE V
COVENANTS OF THE SELLER
5.1 DISTRIBUTIONS.
Each Seller agrees that it shall promptly (but in no event later than two
Business Days) deposit any funds distributed to, or received by, it with respect
to the Agreement Collateral to the Class B Sub-Account.
5.2 PROTECTION OF RIGHT, TITLE AND INTEREST.
(a) Each of the Sellers shall execute and file such financing statements
and cause to be executed and filed such continuation statements and any required
documentation all in such manner and in such places as may be required by law
fully to preserve, maintain and protect the ownership interest of the Purchaser
in the Agreement Collateral and in the proceeds thereof. The Sellers shall
deliver (or cause to be delivered) to the Purchaser, the Issuer, the Collateral
Agent and the Deal Agent filed-stamped copies of, or filing receipts for, any
document filed as provided above, as soon as available following such filing.
(b) None of the Sellers shall change its name, identity, or corporate
structure in any manner that would, could, or might make any financing statement
or continuation statement filed by the Sellers in accordance with paragraph (a)
above seriously misleading within the meaning of Section 9-402 of the UCC,
unless it shall have given the Purchaser, the Issuer, the Collateral Agent and
the Deal Agent at least thirty days' prior written notice thereof and shall have
filed appropriate amendments to all previously filed financing statements or
continuation statements prior to such changes.
(c) Each of the Sellers shall give the Purchaser, the Issuer, the
Collateral Agent and the Deal Agent at least thirty days' prior written notice
of any relocation of its principal executive office if, as a result of such
relocation, the applicable provisions of the UCC would require the filing of any
amendment of any previously filed financing or continuation statement or of any
new financing statement and shall file any such amendment prior to any such
relocation. Each of the Sellers shall at all times maintain its principal
executive office within the United States of America.
(d) The Sellers will not amend, and shall not permit any amendment to any
ALAC Securitization Document, the ALAC Sale and Servicing Agreements or the
Master Spread Account Agreement relating to the Agreement Collateral which would
adversely affect their respective ability and right to receive refunds with
respect thereto, or which would adversely affect the rights of any of the
Issuer, the Deal Agent, the Collateral Agent, the Liquidity Agent, the Secured
Parties, or the Purchaser.
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5.3 OTHER LIENS OR INTERESTS.
Except for the conveyances hereunder, the Sellers will not sell, pledge,
assign or transfer to any other Person, or grant, create, incur, assume or
suffer to exist any adverse claim on any interest in the Agreement Collateral,
and the Sellers shall defend the right, title, and interest of the Purchaser in,
to and under the Agreement Collateral against all claims of third parties
claiming through or under the Sellers.
5.4 COSTS AND EXPENSES.
The Sellers agree to take, at their joint and several expense, any
additional action required by the Purchaser, the Issuer, the Collateral Agent or
the Deal Agent in order to protect the Purchaser's and the Collateral Agent's
(on behalf of the Secured Parties) interests in the Agreement Collateral.
5.5 INDEMNIFICATION.
The Sellers shall jointly and severally indemnify the Purchaser, the
Collateral Agent, the Issuer, the Deal Agent and each Secured Party under the
Basic Documents for any liability as a result of the failure by any Seller to
fully perform hereunder and pursuant to the terms of the Transfer and Servicing
Agreement, the Spread Account Agreements and each other ALAC Securitization
Document. These indemnity obligations shall be in addition to any obligation
that the Sellers may otherwise have.
5.6 SERVICING OBLIGATION.
FISC agrees to continue to act as Servicer under each of the ALAC
Securitizations, to provide reports with respect thereto and to enter into
further agreements with the Purchaser or its assignees relating to such
servicing obligations as may be reasonably requested.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1 OBLIGATION OF SELLERS.
The obligations of the Sellers under this Agreement shall not be affected
by reason of the invalidity, illegality or irregularity of any ALAC
Securitization Document.
6.2 [RESERVED].
6.3 TERMINATION.
The obligations of the Sellers to sell any right, title or interest in the
Agreement Collateral to the Purchaser, and of the Purchaser to purchase such
right, title or interest from the Sellers,
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pursuant to this Agreement shall terminate at such time as the Secured
Obligations of the Issuer are paid in full.
6.4 AMENDMENT.
This Agreement may be amended from time to time by a written instrument
duly executed and delivered by the Sellers and the Purchaser; PROVIDED, HOWEVER,
that no such amendment shall be effective without a prior written consent of the
Deal Agent.
6.5 COLLATERAL ASSIGNMENT.
Notwithstanding anything to the contrary contained herein, each Seller (i)
acknowledges and consents that the Purchaser has sold its rights, title and
interest in the Agreement Collateral to the Issuer who has assigned such rights,
title and interest as collateral pursuant to the Indenture to the Collateral
Agent on behalf of the Indenture Trustee for the benefit of the Secured Parties,
and (ii) agrees to attorn to the Collateral Agent in the event of its succession
to the rights and interest of the Purchaser hereunder by reason of foreclosure
or otherwise.
6.6 [RESERVED].
6.7 WAIVERS.
No failure or delay on the part of any party in exercising any power,
right or remedy under this Agreement shall operate as a waiver thereof, nor
shall any single or partial exercise of any power, right or remedy preclude any
other further exercise thereof or the exercise of any other power, right or
remedy.
6.8 NOTICES.
All communications and notices directed to either party pursuant to this
Agreement shall be in writing addressed or delivered to it at its address set
forth under its name on the signature pages hereof and to the Collateral Agent
and the Deal Agent at: First Union Securities, Inc., One First Union Center,
TW-9, Charlotte, North Carolina 28288, Attn: Conduit Administration, to the
Issuer at: c/o First Investors Financial Services, Inc., 675 Bering Drive,
Houston, TX 77057, to the Backup Servicer, Collateral Custodian or Indenture
Trustee at: MAC N9311-161 Sixth Street and Marquette Avenue, Minneapolis, MN
55479, Attn: Corporate Trust Services - Asset Backed Administration, or at such
other address as may be designated by such party by notice to each other party
and, if mailed or transmitted by facsimile transmission, shall be deemed given
when mailed or transmitted.
6.9 COSTS AND EXPENSES.
The Sellers will pay all expenses incident to the performance of their
obligations under this Agreement and the Sellers agrees to pay all reasonable
out-of-pocket costs and expenses of the Purchaser, in connection with the
perfection as against third parties of the Purchaser's right,
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title and interest in and to the Agreement Collateral and the enforcement of any
obligation of the Sellers hereunder.
6.10 HEADINGS AND CROSS REFERENCES.
The various headings in this Agreement are included for convenience only
and shall not affect the meaning or interpretation of any provisions of this
Agreement.
6.11 GOVERNING LAW.
This Agreement and the Assignment shall be governed by and construed in
accordance with the laws of the State of Georgia.
6.12 COUNTERPARTS.
This Agreement may be executed in two or more counterparts and by
different parties on separate counterparts, each of which shall be an original,
but all of which together shall constitute one and the same instrument. Delivery
of an executed counterpart to a signature page of this Agreement by facsimile
shall be effective as delivery of a manually executed counterpart of this
Agreement.
6.13 NO PROCEEDINGS.
For so long as the Notes shall remain outstanding, each Seller agrees that
it will not 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
Purchaser or the Issuer.
6.14 THIRD PARTY BENEFICIARY.
Each of the parties hereto agree that the Collateral Agent on behalf of
the Indenture Trustee, for the benefit of the Secured Parties, is a third party
beneficiary of this Agreement.
6.15 ASSIGNMENT.
This Agreement may not be assigned by either party hereto without the
prior written consent of the Deal Agent.
[remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
executed by their respective officers thereunder to duly authorized as of the
date and year first above written.
SELLER: FIRST INVESTORS SERVICING CORPORATION
By: _____________________________________
Name:____________________________________
Title: __________________________________
First Investors Servicing Corporation
380 Interstate North Parkway, 3rd Floor
Atlanta, GA 30339
Attention: Bennie H. Duck
Facsimile No.:
Confirmation No.:
SELLER: ALAC RECEIVABLES CORP.
By: _____________________________________
Name:____________________________________
Title: __________________________________
ALAC Receivables Corp.
380 Interstate North Parkway, 3rd Floor
Atlanta, GA 30339
Attention: Bennie H. Duck
Facsimile No.:
Confirmation No.:
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PURCHASER: FIFS ACQUISITION FUNDING COMPANY, L.L.C.
By FIALAC Holdings, Inc.,
as Manager
By: ____________________________________________
Name: Bennie H. Duck
Title: Vice President of FIALAC
Holdings, Inc.
FIFS Acquisition Funding Company, L.L.C.
675 Bering Drive, Suite 710
Houston, TX 77057
Attention: Bennie H. Duck
Facsimile No.:
Confirmation No.:
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Exhibit A
Charge Off Receivables List
[See Tab A 1 Exhibit B]
Appendix I
The Trust Agreements
1. Amended and Restated Trust Agreement, dated as of September 25, 1997,
by and among ALAC Receivables Corp., ALAC, LLC and Bankers Trust (Delaware).
2. Amended and Restated Trust Agreement, dated as of January 13, 1998, by
and among ALAC Receivables Corp., ALAC, LLC and Bankers Trust (Delaware).
The Sale and Servicing Agreements
1. Sale and Servicing Agreement, dated as of September 25, 1997, by and
among ALAC Automobile Receivables Trust 1997-1, ALAC Receivables Corp., First
Investors Servicing Corporation (f/k/a Auto Lenders Acceptance Corporation) and
Norwest Bank Minnesota, National Association.
2. Sale and Servicing Agreement, dated as of January 13, 1998, by and
among ALAC Automobile Receivables Trust 1998-1, ALAC Receivables Corp., First
Investors Servicing Corporation (f/k/a Auto Lenders Acceptance Corporation) and
Norwest Bank Minnesota, National Association.