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Exhibit 10.102(d)
EXECUTION COPY
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ASSET PURCHASE AGREEMENT
among
FIRST INVESTORS FINANCIAL SERVICES, INC.,
as the Purchaser
FIFS ACQUISITION FUNDING COMPANY, L.L.C.,
as a Seller,
FIRST INVESTORS AUTO INVESTMENT CORP.,
as a Seller
and
FIRST INVESTORS AUTO RECEIVABLES CORPORATION
as a Seller
Dated as of December 6, 2001
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TABLE OF CONTENTS
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PAGE
Article I Definitions ...............................................................1
SECTION 1.1 DEFINITIONS.......................................................1
SECTION 1.2 OTHER DEFINITIONAL PROVISIONS.....................................2
SECTION 1.3 COMPUTATION OF TIME PERIODS.......................................3
SECTION 1.4 INTERPRETATION....................................................3
Article II Purchase and Sale of Property.............................................3
SECTION 2.1 SALE OF PROPERTY..................................................3
SECTION 2.2 PAYMENT FOR PROPERTY..............................................4
SECTION 2.3 ADDITIONAL SALES................................................ .4
Article III Representations and Warranties...........................................4
SECTION 3.1 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER............ ......4
SECTION 3.2 REPRESENTATIONS AND WARRANTIES OF THE SELLERS.....................5
SECTION 3.3 REPRESENTATIONS AND WARRANTIES RELATING TO THE PROPERTY...........8
SECTION 3.4 PURCHASE OF PROPERTY UPON BREACH..................................9
Article IV Conditions Precedent .....................................................9
SECTION 4.1 CONDITIONS PRECEDENT..............................................9
Article V Covenants of the Sellers..................................................11
SECTION 5.1 DISTRIBUTIONS....................................................11
SECTION 5.2 PROTECTION OF RIGHT, TITLE AND INTEREST..........................11
SECTION 5.3 OTHER LIENS OR INTERESTS.........................................12
SECTION 5.4 COSTS AND EXPENSES...............................................12
SECTION 5.5 [RESERVED].......................................................12
SECTION 5.6 PAYMENT INSTRUCTIONS.............................................12
Article VI Miscellaneous Provisions.................................................12
SECTION 6.1 OBLIGATION OF SELLERS............................................12
SECTION 6.2 [RESERVED].......................................................12
SECTION 6.3 AMENDMENT........................................................13
SECTION 6.4 PROPERTY ASSIGNMENT..............................................13
SECTION 6.5 SEVERABILITY.....................................................13
SECTION 6.6 WAIVERS..........................................................13
SECTION 6.7 NOTICES..........................................................13
SECTION 6.8 [RESERVED].......................................................14
SECTION 6.9 HEADINGS AND CROSS REFERENCES....................................14
SECTION 6.10 GOVERNING LAW....................................................14
SECTION 6.11 COUNTERPARTS.....................................................14
SECTION 6.12 NONPETITION COVENANT.............................................14
SECTION 6.13 THIRD PARTY BENEFICIARY..........................................14
SECTION 6.14 ASSIGNMENT.......................................................15
SECTION 6.15 SUBMISSION TO JURISDICTION; WAIVER OF TRIAL BY JURY..............15
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EXHIBITS
Exhibit A Form of Accession Agreement
SCHEDULES
Schedule 3.2(o) Name, Tradenames, Jurisdiction of Formation and Address of
each Seller
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ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT (the "AGREEMENT"), dated as of December 6, 2001,
by and between FIRST INVESTORS FINANCIAL SERVICES, INC., a Texas corporation
("FIFS" or the "PURCHASER"), FIFS Acquisition Funding Company, L.L.C., a
Delaware limited liability corporation ("FAFC" or a "SELLER"), FIRST INVESTORS
AUTO INVESTMENT CORP., a Delaware corporation ("FIAIC" or a "SELLER) and FIRST
INVESTORS AUTO RECEIVABLES CORPORATION, a Delaware corporation ("FIARC" or a
"SELLER" and together with FAFC and FIAIC, the "SELLERS").
RECITALS
WHEREAS, each Seller is the owner of certain rights and residual interests
under the related Securitization;
WHEREAS, each Seller desires to sell and contribute each of its respective
rights in the residual interests;
WHEREAS, the Purchaser is willing to acquire each Seller's rights in the
residual interests;
WHEREAS, simultaneously herewith, the Purchaser and First Investors
Residual Funding Limited Partnership ("FIRF") will enter into the Sale and
Servicing Agreement (the "SALE AGREEMENT");
WHEREAS, pursuant to the Sale Agreement, the Purchaser will sell, transfer,
assign, set over and otherwise convey to First Investors Residual Funding
Limited Partnership ("FIRF") all of its rights, title and interest acquired
hereunder;
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
SECTION 1.1 DEFINITIONS.
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Whenever used in this Agreement, the following words and phrases shall have
the following meanings:
ACCESSION AGREEMENT: An accession agreement executed in connection with any
sale, transfer and assignment of additional Property on any day other than the
Closing Date in accordance with SECTION 2.3 each in form and substance identical
to EXHIBIT A hereto.
AGREEMENT: This Asset Purchase Agreement as such agreement may be amended,
modified and/or restated.
FIAIC ASSETS: 80% of the distribution received by FIAIC from time to time from
and after the date hereof in respect of its ownership interest in First
Investors Auto Owner Trust 2000-A pursuant to the Amended and Restated Trust
Agreement, dated as of January 24, 2000 (as heretofore or hereafter amended,
supplemented or restated) between FIAIC as depositor and Bankers Trust
(Delaware) as owner trustee, in all of the assets thereof.
FIARC ASSETS: All distributions received by FIARC pursuant to the FIARC
Agreement.
FIRF: As defined in the Recitals.
PROJECT BRAVE ASSETS: All rights of FAFC to receive partnership distributions
pursuant to Article V of the Agreement of Limited Partnership, dated as of
August 8, 2000 (as heretofore or hereafter amended, supplemented, or restated)
between FAFC, as general partner and First Union Investors, Inc., as limited
partner, including, without limitation all such distributions arising after the
Closing Date, but excluding all of the duties and obligations of FAFC thereunder
or in respect thereof.
PROPERTY: As defined in SECTION 2.1.
PURCHASE PRICE: With respect to any Property sold by a Seller hereunder, the
fair market value, as determined in good faith by such Seller and the Purchaser
as of the date such Property is sold to the Purchaser.
PURCHASER NOTE: As defined in SECTION 2.2.
RESIDUAL ASSETS: The (i) FIAIC Assets, (ii) FIARC Assets, (iii) Project Brave
Assets and (iv) all Subsequent Assets.
SALE AGREEMENT: As defined in the RECITALS.
SELLERS: As defined in the PREAMBLE.
SUBSEQUENT ASSETS: Any assets acquired by the Purchaser from a Seller or any
other Affiliate pursuant to an Accession Agreement.
SECTION 1.2 OTHER DEFINITIONAL PROVISIONS.
(a) Capitalized terms used herein and not otherwise defined herein have the
meanings assigned to them in the Security Agreement.
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(b) All accounting terms used but not specifically defined herein shall be
construed in accordance with GAAP.
SECTION 1.3 COMPUTATION OF TIME PERIODS.
Unless otherwise stated in this Agreement in the computation of a period of
time from a specified date to a later specified date, the word "from" means
"from and including" and the words "to" and "until" each mean "to but
excluding".
SECTION 1.4 INTERPRETATION.
In each Transaction Document, unless a contrary intention appears:
(a) the singular number includes the plural number and vice versa;
(b) reference to any Person includes such Person's successors and assigns
but, if applicable, only if such successors and assigns are permitted by the
Transaction Documents;
(c) reference to any gender includes each other gender;
(d) reference to any agreement (including any Transaction Document),
document or instrument means such agreement, document or instrument as amended,
supplemented or modified and in effect from time to time in accordance with the
terms thereof and, if applicable, the terms of the other Transaction Documents,
and reference to any promissory note includes any promissory note that is an
extension or renewal thereof or a substitute or replacement therefor; and
(e) reference to any Applicable Law means such Applicable Law as amended,
modified, codified, replaced or reenacted, in whole or in part, and in effect
from time to time, including rules and regulations promulgated thereunder and
reference to any section or other provision of any Applicable Law means that
provision of such Applicable Law from time to time in effect and constituting
the substantive amendment, modification, codification, replacement or
reenactment of such section or other provision.
ARTICLE II
PURCHASE AND SALE OF PROPERTY
SECTION 2.1 SALE OF PROPERTY.
Each Seller does hereby sell, transfer, assign, set over, contribute and
otherwise convey to the Purchaser, without recourse (subject to the obligations
set forth herein), all right, title and interest of such Seller in and to the
following, whether now owned or hereafter acquired (collectively, the
"PROPERTY"):
(a) the Residual Assets owned by it; and
(b) all present and future claims, demands, causes and chooses in action in
respect of any or all of the foregoing (excluding rights of FIARC and FIAIC
under the Securitization Facility
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Documents to receive distributions) and all payments on or under and all
proceeds of every kind and nature whatsoever in respect of any or all of the
foregoing, including all proceeds of the conversion, voluntary or involuntary,
into cash or other liquid property, all cash proceeds, accounts, accounts
receivable, notes, drafts, acceptances, chattel paper, checks, deposit accounts,
insurance proceeds, condemnation awards, rights to payment of any and every kind
and other forms of obligations and receivables, instruments and other property
which at any time constitute all or part of or are included in the proceeds of
any of the foregoing items in this SECTION 2.1.
It is the intention of each Seller that the sale and assignment
contemplated by this Agreement shall constitute a sale, contribution and
absolute assignment of the Property from such Seller to the Purchaser and that
no interest, beneficial or otherwise, in the Property shall be retained by such
Seller or be part of such Seller's estate in the event of a bankruptcy,
insolvency or similar proceeding with respect to such Seller. In the event that,
notwithstanding the intent of any Seller, the sale, contribution and assignment
contemplated hereby is held not to be a sale, this Agreement shall constitute a
grant of a security interest in all of the property referred to in this SECTION
2.1 to the Purchaser.
SECTION 2.2 PAYMENT FOR PROPERTY.
The Purchaser shall purchase and pay for the Residual Assets any other
related property by causing the Purchase Price thereof to be paid to each Seller
by delivery of a promissory note made by the Purchaser payable to the order of
such Seller in a principal amount equal to the Purchase Price for the Residual
Assets owned by such Seller (each such promissory note is herein called a
"PURCHASER NOTE"), which will be secured by a pledge of such Purchaser's limited
partnership interest in FIRF.
SECTION 2.3 ADDITIONAL SALES.
From time to time hereafter any Seller or any other Affiliate of FIFS that
becomes a party to an Accession Agreement, will sell, transfer and assign to the
Purchaser additional items of Property acquired by such seller under any
Securitization. Each such sale, transfer and assignment shall be made pursuant
to, and subject to the terms and conditions of, an Accession Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 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 corporation in good standing under the laws of the State
of Texas, 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
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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 Transaction 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 certificate of incorporation or the by-laws
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.
SECTION 3.2 REPRESENTATIONS AND WARRANTIES OF THE SELLERS.
Each Seller hereby represents and warrants, to the Purchaser as follows:
(a) ORGANIZATION. It is a limited liability company, limited partnership or
corporation, as applicable, duly organized and validly existing in good standing
under the laws of the state of its incorporation or formation as applicable,
with all requisite corporate power and authority to own or lease its properties
and to conduct its business as such business is presently conducted, and had at
all relevant time, and now has all necessary power, authority and legal right to
acquire, own and sell the Property.
(b) DUE QUALIFICATION. It is duly qualified to do business as a foreign
limited liability company, limited partnership or corporation, as applicable and
is in good standing, and has obtained all necessary licenses and approvals in
all states in which the ownership or lease of property or the conduct of its
business requires such qualification.
(c) POWER AND AUTHORITY; DUE AUTHORIZATION. It (i) has all necessary power,
authority and legal right to (A) execute and deliver this Agreement each other
Transaction Document to which it is a party, (B) carry out the terms of this
Agreement and each other Transaction Document to which it is a party and (ii)
has been duly authorized by all necessary corporate action for the due
execution, delivery and performance of this Agreement and each other Transaction
Document to which it is a party and for the transfer, sale and assignment of the
Property.
(d) SOLVENCY. The transactions under this Agreement and any other
Transaction Document to which it is a party do not and will not render it not
Solvent.
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(e) TRUE SALE. The transfer of the Property by it to the Purchaser
hereunder is a sale and not a loan secured by a pledge of the Property or a
contribution or absolute assignment of all of its right, title and interest in
and to such Property.
(f) FINANCIAL STATEMENTS. All financial statements or certificates of it or
any of its officers furnished to the Purchaser or any other Person pursuant to
the Transaction Documents fairly present the financial condition and results of
operations of it at the dates. All the financial statements have been prepared
in accordance with generally accepted accounting principles, consistently
applied.
(g) ENFORCEABILITY. The Transaction Documents to which it is a party
constitute legal, valid and binding obligations of it, enforceable against it in
accordance with its respective terms, except as limited by bankruptcy,
reorganization, insolvency, fraudulent conveyance, moratorium and other similar
laws and equitable principles affecting creditors' rights and remedies.
(h) NO CONFLICTS. The consummation of the transactions contemplated by
this Agreement and the other Transaction Documents to which it is a party and
the fulfillment of the terms hereof and thereof will not (i) conflict with,
result in any breach of any of the terms and provisions of, or constitute (with
or without notice, lapse of time or both) a default under, the corporate
documents of such Seller, or any material indenture, agreement, mortgage, deed
of trust or other instrument to which it is a party or by which it is bound,
(ii) result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of the indenture, agreement, mortgage, deed of trust or
other the instrument, other than the Transaction Documents, or (iii) violate any
Applicable Law.
(i) LEGAL PROCEEDINGS. There is no proceeding or investigation pending or,
to the best of its knowledge, threatened against it, before any Governmental
Authority (i) asserting the invalidity of this Agreement or any other
Transaction Document to which it is a party, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement or any
other Transaction Document to which it is a party, or (iii) seeking any
determination or ruling that would materially and adversely affect the
performance by it of its obligations under, or the validity or enforceability
of, this Agreement or any other Transaction Document to which it is a party.
(j) CONSENTS AND APPROVALS. All approvals, authorizations, consents, orders
or other actions of any Person or of any Governmental Authority (if any)
required for the due execution, delivery and performance by it of this Agreement
and any other Transaction Document to which it is a party have been obtained.
(k) INVESTMENT COMPANY ACT OF 1940. It is not an "investment company"
registered or required to be registered under the Investment Company Act of
1940, as amended.
(l) PROPERTY. It has good and marketable title (or its equivalent under
applicable law) to the Property transferred to the Purchaser by it and the
proceeds thereof free and clear of any Liens and the claims of any third party.
No effective financing statement or other instrument similar in effect covering
any Property transferred by it hereunder shall at any time be on file in any
recording office except as contemplated hereby and by the Transaction Documents.
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(m) SECURITY INTEREST. The sale, transfer and assignment by it of the
Property has been duly perfected under all applicable laws. The interest of the
Purchaser is a first priority perfected ownership interest in the Property
transferred to the Purchaser by it. All filings (including, without limitation,
the UCC filings) as are necessary in any jurisdiction to perfect the interests
of the Purchaser, FIRF and of the Collateral Agent for the benefit of the
Secured Parties, in the Property transferred to the Purchaser by it have been
(or prior to the Closing Date will be) made.
(n) TAX STATUS. It has filed or caused to be filed all tax returns that are
required to be filed by it. It has paid or made adequate provisions for the
payment of all Taxes and all assessments made against it or any of its property
(other than any amount of Taxes the validity of which is currently being
contested in good faith by appropriate proceedings and with respect to which
reserves in accordance with GAAP have been provided on the books of such
Seller), and no tax lien has been filed and, to the its knowledge, no claim is
being asserted, with respect to any such Taxes, fees or other charge. The tax
returns are complete and accurate in all respects.
(o) NAME, JURISDICTION OF FORMATION AND ADDRESSES. Except as disclosed on
SCHEDULE 3.2(o), during the four (4) months prior to the Closing Date, it has
not been located at any addresses other than its current address. During the
five (5) years immediately preceding the Closing Date it has operated under its
own and only those tradenames or other names as set forth on SCHEDULE 3.2(o).
It's jurisdiction of formation is as set forth on SCHEDULE 3.2(o) and it has not
changed its jurisdiction of formation within the four (4) months immediately
preceding the Closing Date. It is a "registered organization" within the meaning
of Article 9 of the UCC as adopted in each relevant jurisdiction.
(p) NO DEFAULT. There has been no default, breach, violation or event
permitting acceleration under the terms of this Agreement or any other
Transaction Document to which it is a party, and no condition exists or event
has occurred and is continuing that with notice, the lapse of time or both would
constitute a default, breach, violation or event permitting acceleration under
the terms of this Agreement or any other Transaction Document, and there has
been no waiver of any of the foregoing.
(q) ACCURACY OF REPRESENTATIONS AND WARRANTIES. Each representation or
warranty by it contained herein or in any other document furnished by it
pursuant hereto or in connection with any other document furnished by it is true
and correct in all material respects.
(r) REPRESENTATIONS AND WARRANTIES IN SECURITIZATION FACILITY DOCUMENTS.
The representations and warranties made by each Seller in the Securitization
Facility Documents are hereby remade by such Seller on each date to which they
speak in the Securitization Facility Documents as if such representations and
warranties were set forth herein as made by the Sellers MUTATIS MUTANDIS.
SECTION 3.3 REPRESENTATIONS AND WARRANTIES RELATING TO THE PROPERTY.
Each Seller hereby represents and warrants to the Purchaser, the Deal Agent
and each Secured Party as follows:
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(a) MARKING OF RECORDS. It has caused the portions of its records relating
to the Property to be clearly and unambiguously identified to show that the
Property transferred by it has been sold by it to the Purchaser in accordance
with the terms of this Agreement.
(b) GOOD TITLE. No portion of the Property transferred by it has been sold,
transferred, assigned or pledged by it to any Person other than the Purchaser,
except as may be permitted by the Transaction Documents. Immediately prior to
the conveyance of the Property transferred by it to the Purchaser pursuant to
this Agreement, it was the sole owner thereof and had good and indefeasible
title thereto, free of any Lien and, upon the sale thereof by it pursuant to
this Agreement, the Purchaser shall have good and indefeasible title to and will
be the sole owner of such portion of the Property sold by it pursuant to this
Agreement, free of any Lien.
(c) ALL FILINGS MADE. All filings (including, without limitation, UCC
filings) required to be made by any Person and actions required to be taken or
performed by any Person in any jurisdiction to give the Purchaser, FIRF and the
Collateral Agent for the benefit of the Secured Parties, a first priority
perfected lien on, or ownership interest in, the Property transferred by it and
the proceeds thereof have been made, taken or performed.
(d) NO IMPAIRMENT. It has done nothing to convey any right to any Person
that would result in such Person having a right to payments due under any
portion or all of the Property transferred by it or otherwise to impair the
rights of the Purchaser, the Collateral Agent or any Secured Party in any
portion or all of such Property or the proceeds thereof.
(e) NO DEFENSES. No portion of the Property transferred by it is subject to
any right of recession, setoff, counterclaim or defense and no such right has
been asserted or threatened with respect to any portion or all of such Property.
SECTION 3.4 PURCHASE OF PROPERTY UPON BREACH.
Upon discovery by the Deal Agent, the Servicer, the Purchaser or any Seller
of a breach of any of any of the representations and warranties relating to the
Residual Assets and the related property or the servicing thereof, the party
discovering such breach shall give prompt written notice to the others. By the
earlier to occur of (a) the next Payment Date and (b) thirty (30) days of such
notice being given, the related Seller shall repurchase, for the related
Purchase Price, such Residual Assets and the related property from the Purchaser
and the Purchaser Note payable to such Seller shall be reduced by the portion of
the Purchase Price attributable to the Residual Assets and related property
being repurchased as a result of such breach.
ARTICLE IV
CONDITIONS PRECEDENT
SECTION 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.
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(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, authorized by such Seller and
naming the Purchaser as purchaser of the Property transferred by such
Seller, and the Collateral Agent, as assignee, describing the Property
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 Property to the Purchaser. Each Seller shall deliver to
the Purchaser, Collateral Agent 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 Property and any other document requested by the
Deal Agent to be delivered shall have been delivered by the Sellers.
(c) TRANSACTION DOCUMENTS. The Transaction Documents shall have been duly
executed by each of the parties thereto.
(d) OPINIONS. The Purchaser and the Deal Agent shall have received
opinions, dated the Closing Date, of Thompson & Knight, as to:
(i) "true sale" of the Property transferred hereunder from each Seller
to the Purchaser and substantive nonconsolidation issues under the
Bankruptcy Code (each such opinion referred to herein as a "BANKRUPTCY
OPINION");
(ii) corporate, enforceability and security interest, to the effect
that:
(A) Each Seller is an entity duly organized, existing and in good
standing under the laws of the State of its incorporation or formation
as applicable, with corporate power and authority to own its
properties and conduct its business as currently conducted;
(B) Each Seller has or had at all relevant times full power,
authority and legal right to exercise, deliver and perform its
obligations under this Agreement and each other Transaction Document
to which it is a party; and has or had at all relevant times full
power, authority and legal right to acquire, own and transfer the
Property pursuant to the terms hereof;
(C) This Agreement has been duly authorized, executed and
delivered by each Seller and is a valid and binding agreement,
enforceable against such Seller in accordance with its terms, except
to the extent that enforcement thereof may be limited by (1)
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights
generally and (2) general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law);
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(D) The transfer of the Property by each Seller to the Purchaser
pursuant to this Agreement, the compliance by each Seller with all of
the provisions of the Note Purchase Agreement, the Sale Agreement, the
Security Agreement and this Agreement and the consummation of the
transactions therein or herein contemplated will not (1) conflict with
or result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument known to such
counsel to which any Seller is a party or by which any Seller is bound
or to which any of the property or assets of any Seller is subject,
(2) result in any violation of the provisions of any order known to
such counsel of any court or governmental agency or body having
jurisdiction over any Seller or any of its properties or (3) result in
any violation of the provisions of the articles of incorporation,
by-laws, certificate of formation, operating agreement or partnership
agreement as applicable, of any Seller or any statute or any
Applicable Law;
(E) No authorization, approval, consent or order of, or filing
with, any court or governmental authority or agency is required by any
Seller in connection with the consummation of the transactions
contemplated in the Note Purchase Agreement, the Sale Agreement,
Security Agreement or this Agreement, except such as have been
obtained;
(F) To the best of such counsel's knowledge and information,
there are no actions, proceedings or investigations pending before any
court or governmental authority against any Seller (1) asserting the
invalidity of the Note Purchase Agreement, the Sale Agreement, the
Security Agreement or this Agreement, (2) seeking to prevent the
consummation by any Seller of any of the transactions contemplated by
any Transaction Document to which it is a party or (3) which might
materially and adversely affect the performance by any Seller of its
obligations under any Transaction Document to which it is a party; and
(G) the provisions of this Agreement are effective to create a
valid security interest in the Property transferred by such Seller in
favor of the Purchaser and such security interest is perfected and
prior to all other creditors of and purchasers of any Seller.
ARTICLE V
COVENANTS OF THE SELLERS
SECTION 5.1 DISTRIBUTIONS.
Each Seller agrees that it shall promptly (but in no event later than the
Business Day following receipt by it) deposit any funds distributed to, or
received by, it with respect to the Property transferred by it hereunder to the
Collection Account.
SECTION 5.2 PROTECTION OF RIGHT, TITLE AND INTEREST.
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(a) Each Seller shall authorize and file such financing statements and
cause to be authorized 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 Property and in the proceeds thereof. Each Seller shall deliver (or cause
to be delivered) to the Purchaser, 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) No Seller 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 such Seller in accordance with PARAGRAPH (a)
above seriously misleading within the meaning of Section 9-506 of the UCC,
unless it shall have given the Purchaser, the Collateral Agent and the Deal
Agent at least thirty (30) days' prior written notice thereof and shall have
filed appropriate amendments to all previously filed financing statements or
continuation statements prior to such changes. No Seller shall cease to be a
"registered organization" within the meaning of Article 9 of the UCC as adopted
in each relevant jurisdiction.
(c) Each Seller shall give the Purchaser, the Collateral Agent and the Deal
Agent at least thirty (30) 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
Seller shall at all times maintain its principal executive office within the
United States of America.
(d) No Seller will amend, and no Seller shall permit any amendment to any
Securitization Facility Documents relating to the Property which would adversely
affect its respective ability and right to receive refunds with respect thereto,
or which would adversely affect the rights of any of the Purchaser, the Deal
Agent, the Collateral Agent, the Liquidity Agent or the Secured Parties.
SECTION 5.3 OTHER LIENS OR INTERESTS.
Except for the conveyances hereunder, no Seller will 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 Property, and each Seller shall
defend the right, title, and interest of the Purchaser in, to and under the
Property against all claims of third parties claiming through or under each
Seller.
SECTION 5.4 COSTS AND EXPENSES.
Each Seller agrees to take, at its expense, any additional action required
by the Purchaser, 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 Property.
SECTION 5.5 [RESERVED].
SECTION 5.6 PAYMENT INSTRUCTIONS.
11
<Page>
Each Seller agrees that it will not change or permit any change in the
instructions regarding payments to be made to such Seller hereunder or under any
Securitization Facility Document with respect to any of the Property transferred
by it hereunder.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 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 Securitization
Facility Document.
SECTION 6.2 [RESERVED].
SECTION 6.3 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.
SECTION 6.4 PROPERTY ASSIGNMENT.
Notwithstanding anything to the contrary contained herein, each Seller (a)
acknowledges and consents that the Purchaser has sold its rights, title and
interest in the Property to FIRF who has assigned such rights, title and
interest as collateral pursuant to the Security Agreement to the Collateral
Agent, for the benefit of the Secured Parties, and (b) 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.
SECTION 6.5 SEVERABILITY.
Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 6.6 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.
SECTION 6.7 NOTICES.
12
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All communications and notices directed to any party pursuant to this
Agreement shall, unless otherwise stated herein, be in writing (including telex
communication and communication by facsimile) and mailed, telexed, transmitted
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 Purchaser at: c/o First Investors Financial
Services, Inc., 675 Bering Drive, Houston, TX 77057, to any Seller at: c/o First
Investors Financial Services, Inc., 675 Bering Drive, Houston, TX 77057, or at
such other address as may be designated by such party by notice to each other
party. All such notices and communication shall be effective, upon receipt, or
in the case of (a) notice by mail, five (5) days after being deposited in the
United States mail, first class postage prepaid, (b) notice by telex when
telexed against receipt of answer back, or (c) notice by facsimile copy, when
verbal communication of receipt is obtained.
SECTION 6.8 [RESERVED].
SECTION 6.9 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.
SECTION 6.10 GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUCED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 6.11 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.
SECTION 6.12 NONPETITION COVENANT.
Notwithstanding any prior termination of this Agreement, the Purchaser
agrees that it shall not, prior to the date that is one year and one day after
the termination of this Agreement with respect to any Seller, acquiesce to,
petition or otherwise invoke or cause such Seller to invoke the process of any
court or government authority for the purpose of commencing or sustaining a case
against such Seller under any federal or state bankruptcy, insolvency or similar
law, appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator, or other similar official of such Seller or any substantial part
of its property, or ordering the winding up or liquidation of the affairs of any
Seller.
SECTION 6.13 THIRD PARTY BENEFICIARY.
13
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Each of the parties hereto agree that the Collateral Agent for the benefit
of the Secured Parties, is a third party beneficiary of this Agreement.
SECTION 6.14 ASSIGNMENT.
This Agreement and/or any rights or obligations hereunder may not be
assigned without the prior written consent of the Deal Agent (which consent
shall be granted in the Deal Agent's sole discretion). The rights of the
Collateral Agent, the Deal Agent and the Secured Parties under this Agreement,
the Notes, the Property and all other rights hereunder and thereunder may be
assigned to any Person without the consent of any Seller or the Purchaser. The
Transaction Documents shall inure to the benefit of and be binding on the
respective successors and assigns of the parties hereto.
SECTION 6.15 SUBMISSION TO JURISDICTION; WAIVER OF TRIAL BY JURY.
With respect to any claim arising out of this Agreement, to the fullest
extent permitted by law:
(a) each party irrevocably submits to the non-exclusive jurisdiction of the
state courts of, and the federal courts located within, the State of New York,
New York County, and
(b) each party irrevocably waives any objection which it may have at any
time to the laying of venue of any suit, action or proceeding arising out of or
relating hereto brought in any such court, irrevocably waives any claim that any
such suit, action or proceeding brought in any such court has been brought in an
inconvenient forum and further irrevocably waives the right to object, with
respect to such claim, suit, action or proceeding brought in any such court,
that such court does not have jurisdiction over such party.
EACH PARTY HERETO IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR ANY MATTER ARISING HEREUNDER.
[remainder of page intentionally left blank]
14
<Page>
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: FIFS ACQUISITION FUNDING COMPANY, L.L.C.
By: FIALAC Holdings, Inc., its sole manager
By:
-------------------------------------------------
Name: Bennie H. Duck
Title: Vice President and Chief Financial Officer
FIFS Acquisition Funding Company, L.L.C.
675 Bering Drive
Suite 710
Houston, Texas 77057
Attention: Bennie H. Duck
Facsimile No.: (713) 260-0028
Confirmation No.: (713) 977-2600
SELLER: FIRST INVESTORS AUTO INVESTMENT CORP.
By:
-------------------------------------------------
Name: Bennie H. Duck
Title: Vice President and Chief Financial Officer
First Investors Auto Investment Corp.
675 Bering Drive
Suite 710
Houston, Texas 77057
Attention: Bennie H. Duck
Facsimile No.: (713) 260-0028
Confirmation No.: (713) 977-2600
<Page>
SELLER: FIRST INVESTORS AUTO RECEIVABLES
CORPORATION
By:
-------------------------------------------------
Name: Bennie H. Duck
Title: Vice President and Chief Financial Officer
First Investors Auto Receivables Corporation
675 Bering Drive
Suite 710
Houston, Texas 77057
Attention: Bennie H. Duck
Facsimile No.: (713) 260-0028
Confirmation No.: (713) 977-2600
<Page>
PURCHASER: FIRST INVESTORS FINANCIAL SERVICES, INC.
By:
----------------------------------------------------
Name: Bennie H. Duck
Title: Vice President and Chief Financial Officer
First Investors Financial Services, Inc.
675 Bering Drive, Suite 710
Houston, TX 77057
Attention: Bennie H. Duck
Facsimile No.: (713) 260-0028
Confirmation No.: (713) 977-2600
<Page>
Exhibit A
Form of Accession Agreement
ACCESSION AGREEMENT (the "AGREEMENT"), dated as of [______], by and between
[NAME OF NEW SELLER] (the "SELLER"), a [JURISDICTION OF ORGANIZATION] [TYPE OF
ENTITY] and First Investors Financial Services, Inc., a Texas corporation
("FIFS"). Capitalized terms used and not otherwise defined herein shall have the
meanings ascribed thereto in the Asset Purchase Agreement (hereinafter defined).
RECITALS
WHEREAS, the Asset Purchase Agreement, dated as of December 6, 2001, by and
between FIFS, as purchaser, FIFS Acquisition Funding Company, L.L.C., as a
seller, First Investors Auto Investment Corp., as a seller, and First Investors
Auto Receivables Corporation, as a seller (as amended, restated, supplemented or
otherwise modified from time to time, the "ASSET PURCHASE AGREEMENT"), provides
that [NAME OF NEW SELLER], although not originally a Seller thereunder, may
sell, transfer and assign to FIFS additional items of Property acquired under
any Securitization.
WHEREAS, [NAME OF NEW SELLER] was not a Seller under the Asset Purchase
Agreement but now desires to become a Seller thereunder.
NOW, THEREFORE, the undersigned hereby states and agrees as follows:
SECTION 1.1 ADDITION AS SELLER.
(a) The undersigned agrees to be bound by all of the provisions of the
Asset Purchase Agreement applicable to a Seller thereunder and agrees that it
shall, on the date this Agreement is executed by the parties hereto, become a
Seller for all purposes of the Asset Purchase Agreement to the same extent as if
originally a party thereto.
(b) The undersigned states that no condition or event exists which
constitutes a Termination Event or Unmatured Termination Event.
(c) The undersigned hereby states that each of the representations and
warranties set forth in Section 3.2 of the Asset Purchase Agreement are true and
correct as of the date hereof.
SECTION 1.2 CONDITIONS PRECEDENT.
The effectiveness of this Agreement is subject to the satisfaction of the
conditions precedent attached hereto as SCHEDULE A.
<Page>
SECTION 1.3 MISCELLANEOUS.
(a) 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.
(b) This Agreement may be amended from time to time by a written instrument
duly executed and delivered by [NAME OF NEW SELLER] and FIFS; PROVIDED, HOWEVER,
that no such amendment shall be effective without the prior written consent of
the Deal Agent.
(c) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<Page>
IN WITNESS WHEREOF, the undersigned has caused this Accession Agreement to
be executed and delivered by a duly authorized officer on the date first above
written.
[NAME OF NEW SELLER]
By:
------------------------------
Name:
Title:
ACCEPTED AS OF THE DATE FIRST
ABOVE WRITTEN:
FIRST INVESTORS FINANCIAL SERVICES, INC.
By:
--------------------------
Name:
Title:
ACKNOWLEDGED AS OF THE DATE FIRST
ABOVE WRITTEN:
FIRST UNION SECURITIES, INC.,
as Deal Agent
By:
--------------------------
Name:
Title:
<Page>
Schedule A
Conditions Precedent
This effectiveness of this Agreement is subject to the following conditions
precedent:
(a) DOCUMENTS TO BE DELIVERED BY SELLER.
(i) EVIDENCE OF UCC FILING. 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, authorized by Seller and naming FIFS
as purchaser of the Property transferred by Seller , and the Collateral
Agent, as assignee, describing the Property transferred by 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 Property to FIFS. Seller shall
deliver to FIFS, Collateral Agent and Deal Agent a file-stamped copy, or
other evidence satisfactory to FIFS and Deal Agent of such filing.
(ii) OTHER DOCUMENTS. All other documents in the possession of Seller
relating to the Property and any other document requested by the Deal Agent
to be delivered shall have been delivered by Seller .
(b) OPINIONS. FIFS and the Deal Agent shall have received opinions, dated
as of the date hereof, of [NAME OF COUNSEL], as to:
(i) "true sale" of the Property transferred hereunder from Seller to
FIFS and substantive nonconsolidation issues under the Bankruptcy Code
(each such opinion referred to herein as a "BANKRUPTCY OPINION");
(ii) corporate, enforceability and security interest, to the effect
that:
(A) Seller is an entity duly organized, existing and in good
standing under the laws of the State of its incorporation or formation
as applicable, with corporate power and authority to own its
properties and conduct its business as currently conducted;
(B) Seller has or had at all relevant times full power, authority
and legal right to exercise, deliver and perform its obligations under
this Agreement and each other document to which it is a party; and has
or had at all relevant times full power, authority and legal right to
acquire, own and transfer the Property pursuant to the terms hereof;
(C) This Agreement has been duly authorized, executed and
delivered by Seller and is a valid and binding agreement, enforceable
against Seller in accordance with its terms, except to the extent that
enforcement thereof may be limited by (1) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (2)
<Page>
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law);
(D) The transfer of the Property by Seller to FIFS pursuant to
this Agreement, the compliance by Seller with all of the provisions of
the Asset Purchase Agreement and the consummation of the transactions
therein or herein contemplated will not (1) conflict with or result in
a breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument known to such counsel to which Seller
is a party or by which Seller is bound or to which any of the property
or assets of Seller is subject, (2) result in any violation of the
provisions of any order known to such counsel of any court or
governmental agency or body having jurisdiction over Seller or any of
its properties or (3) result in any violation of the provisions of the
articles of incorporation, by-laws, certificate of formation,
operating agreement or partnership agreement as applicable, of Seller
or any statute or any Applicable Law;
(E) No authorization, approval, consent or order of, or filing
with, any court or governmental authority or agency is required by
Seller in connection with the consummation of the transactions
contemplated in this Agreement, except such as have been obtained;
(F) To the best of such counsel's knowledge and information,
there are no actions, proceedings or investigations pending before any
court or governmental authority against Seller (1) asserting the
invalidity of this Agreement, (2) seeking to prevent the consummation
by Seller of any of the transactions contemplated in this Agreement or
(3) which might materially and adversely affect the performance by
Seller of its obligations under this Agreement; and
(G) The provisions of this Agreement are effective to create a
valid security interest in the Property transferred by Seller in favor
of FIFS and such security interest is perfected and prior to all other
creditors of and purchasers of Seller
(c) Each party shall have performed and complied with all agreements and
conditions contained herein which are required to be performed or complied
with by such party on or before the date hereof.
(d) This Agreement shall have been duly authorized, executed and delivered
by the respective parties hereto, shall be in full force and effect on the
date hereof and shall be in a form and substance satisfactory to the Deal
Agent.
(e) The Deal Agent shall have received the following, in each case in form
and substance satisfactory to it:
(i) a copy of the resolutions of Seller, certified by the [SECRETARY]
of Seller, duly authorizing the execution, delivery and performance by
Seller of this Agreement and
<Page>
any other documents executed by or on behalf of Seller in connection with
the transactions contemplated hereby; and an incumbency certificate of
Seller as to the person or persons executing or delivering each such
document;
(ii) certified completed copies of requests for information or copies
(or a similar search report certified by a party acceptable to the Deal
Agent), dated not more than thirty (30) days prior to the effective date of
this Agreement, listing all effective financing statements that name Seller
as debtor and that are filed in the jurisdictions in which the financing
statements described in CLAUSE (a)(i) of this SCHEDULE A were filed,
together with copies of such financing statements, and similar search
reports with respect to federal tax liens in all appropriate jurisdictions
(none of which, other than the financing statements in CLAUSE (a)(i), shall
cover any of the Property);
(iii) a copy of an officially certified document dated not more than
thirty (30) days prior to the effective date of this Agreement evidencing
good standing of Seller issued by the Secretary of State of Seller's state
of formation and each jurisdiction where Seller ha material operations;
(iv) such other documents and evidence with respect to Seller as the
Deal Agent may request.
(f) No fact or condition shall exist as of the date hereof under Applicable
Law which in the Deal Agent's reasonable opinion would make it unlawful for any
of the parties hereto to perform their respective obligations under this
Agreement.
(g) On or prior to the effective date of this Agreement, the Seller shall
have filed any financing statements, termination statements or amendments
thereto, wherever necessary or advisable, in order to perfect the transfers and
assignments of the Property to FIFS and the grant of the security interest
therein to the FIFS and shall have delivered file-stamped copies of such
financing statements or other evidence of the filing thereof to the Deal Agent.
(h) All taxes and fees due in connection with the filing of the financing
statements referred to in CLAUSE (a)(i) of this SCHEDULE A shall have been paid
in full or duly provided for.
(i) Seller shall certify to the Deal Agent that no Servicer Termination
Event, Insurer Default or Insurance Agreement Event of Default shall have
occurred on or prior to the effective date of this Agreement as such terms are
defined under the documents for the related Securitization.
(j) As of the effective date of this Agreement, no action or proceeding
shall have been instituted nor shall any governmental action be threatened
before any court or governmental agency nor shall any order, judgment or decree
have been issued or proposed to be issued by any court or governmental agency to
set aside, restrain, enjoin or prevent the performance of this Agreement or any
of the other agreements or the transactions contemplated hereby.
(k) The Deal Agent shall, as of the date hereof, have been furnished with
such other documents and opinions (including executed copies, addressed to it or
otherwise expressly allowing it to rely thereon of such documents or opinions)
delivered to any other person in
<Page>
connection with this Agreement and the transactions contemplated hereby as it
may reasonably require;
(l) Seller shall certify that there has been no material adverse change in
the condition (financial or otherwise), business operations, results of
operations or properties of Seller since [__________].
<Page>
Schedule 3.2(o)
Name, Tradenames, Jurisdiction of Formation, Address and
Trade Names or Other Names of each Seller
<Table>
<Caption>
- ---------------------------------------------------------------------------------------------
Name Trade Business Address Jurisdictions
Name
- ---------------------------------------------------------------------------------------------
First Investors Auto Receivables N/A 675 Bering Drive, Suite 710 Delaware, Texas
Corporation Houston, TX 77057
- ---------------------------------------------------------------------------------------------
First Investors Auto Investment N/A 675 Bering Drive, Suite 710 Delaware, Texas
Corp. Houston, TX 775057
- ---------------------------------------------------------------------------------------------
FIFS Acquisition Funding N/A 675 Bering Drive, Suite 710 Delaware, Texas
Company LLC Houston, TX 775057
- ---------------------------------------------------------------------------------------------
</Table>