TABLE OF CONTENTS

 

Article I	Definitions				1
Section 1.1.			Definitional Provisions		1
Article II	Contribution of Contracts				2
Section 2.1.			Contribution of Contracts		2
Section 2.2.			Representations and Warranties of the Seller as to the Contracts.		5
Section 2.3.			Repurchase by the Seller upon Breach		9
Article III	The Seller				9
Section 3.1.			Representations and Warranties of the Seller		9
Section 3.2.			Liability of the Seller; Indemnities		11
Section 3.3.			Limitation on Liability of the Seller and Others		11
Article IV	Miscellaneous				12
Section 4.1.			Amendment		12
Section 4.2.			Protection of Title of Depositor		13
Section 4.3.			Governing Law		13
Section 4.4.			Notices		14
Section 4.5.			Severability of Provisions		14
Section 4.6.			Assignment		14
Section 4.7.			Further Assurances		14
Section 4.8.			No Waiver; Cumulative Remedies		15
Section 4.9.			Third-Party Beneficiaries		15
Section 4.10.			Actions by Noteholders		15
Section 4.11.			Counterparts		15
Section 4.12.			[Reserved]		15
Section 4.13.			No Bankruptcy		16
Section 4.14.			Certain Rights of the Insurer		16
Section 4.15.			Non-Confidential		16

 

i

 

Exhibits

 

Exhibit A                Form of Additional Contract Assignment

 

Schedules

 

Schedule 1             Schedule of Initial Contracts

Schedule 2             Perfection Representations, Warranties and Covenants

 

ii

 

CONTRIBUTION AGREEMENT, dated as of January 26, 2006 (as amended, supplemented or otherwise modified and in effect from time to time, this “Agreement”), between FIRST INVESTORS FINANCIAL SERVICES, INC., a Texas corporation, as seller (the “Seller”) and FIRST INVESTORS AUTO FUNDING CORPORATION, a Delaware corporation, as depositor (the “Depositor”).

 

WHEREAS, in the regular course of its business, the Seller originates, refinances and purchases from Originators, certain motor vehicle installment sales contracts secured by new and used automobiles and light duty trucks; and

 

WHEREAS, the Seller and the Depositor wish to set forth the terms pursuant to which the Seller’s right, title and interest in and to the Contracts and related security is to be conveyed, transferred, contributed and assigned by Seller to the Depositor, which Contracts and related security will then be sold by the Depositor, pursuant to the Sale and Allocation Agreement, to the Trust, which Trust will issue the Notes.

 

NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

Article I

 

Definitions

 

Section 1.1.               Definitional Provisions.

 

(a)           Capitalized terms used herein and not otherwise defined herein have the meanings assigned to them in the Sale and Allocation Agreement (the “Sale and Allocation Agreement”), dated as of the date hereof, among the Seller, the Depositor, First Investors Servicing Corporation, as servicer (the “Servicer”), First Investors Auto Owner Trust 2006-A (the “Trust”) and Wells Fargo Bank, National Association, as Indenture Trustee (in such capacity, the “Indenture Trustee”) and Securities Intermediary (in such capacity, the “Securities Intermediary”).

 

(b)           All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein.

 

(c)           As used in this Agreement and in any certificate or other document made or delivered pursuant hereto or thereto, accounting terms not defined in this Agreement or in any such certificate or other document, and accounting terms partly defined in this Agreement or in any such certificate or other document to the extent not defined, shall have the respective meanings assigned to them under generally accepted accounting principles.  To the extent that the definitions of accounting terms in this Agreement or in any such certificate or other document are inconsistent with the meanings of such terms under generally accepted accounting

 

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principles, the definitions contained in this Agreement or in any such certificate or other document shall control.

 

(d)           The words “hereof,” “herein,” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.  Article, Section, Schedule and Exhibit references contained in this Agreement are references to Articles, Sections, Schedules and Exhibits in or to this Agreement unless otherwise specified.  The term “including” shall mean “including without limitation.”

 

(e)           The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms.

 

(f)            Any agreement, instrument or statute defined or referred to herein or in any instrument or certificate delivered in connection herewith means such agreement, instrument or statute as from time to time amended, modified or supplemented and includes (in the case of agreements or instruments) references to all attachments thereto and instruments incorporated therein.  References to a Person are also to its permitted successors and assigns.

 

Article II

 

Contribution of Contracts

 

Section 2.1.               Contribution of Contracts.

 

(a)           On the Closing Date, the Seller hereby agrees to convey, transfer and absolutely contribute, without recourse (except as specifically set forth herein), subject to the obligations herein, to the Depositor, and the Depositor agrees to accept from the Seller, all of the right, title and interest of the Seller, whether now owned or hereafter acquired, in, to and under the following (collectively, the “Initial Contributed Property”):

 

(i)            the Initial Contracts;

 

(ii)           all amounts received on or in respect of the Contracts after the applicable Cutoff Date (except that interest accrued on the Contracts prior to the applicable Cutoff Date and received after such Cutoff Date will be remitted by the Depositor to the Seller);

 

(iii)          the security interests in the Financed Vehicles;

 

(iv)          any proceeds from claims on or refunds of premiums with respect to extended warranties or physical damage, theft, credit life and credit disability insurance policies relating to the Financed Vehicles or the related Obligors;

 

(v)           any Liquidation Proceeds;

 

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(vi)          the Contract Files; and

 

(vii)         all present and future claims, demands, causes of action and choses in action in respect of any or all of the foregoing 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 thereof, 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.

 

(b)           On each Additional Contract Purchase Date, subject to the terms and conditions of this Agreement, the Seller will convey, transfer and absolutely contribute, without recourse (except as specifically provided herein), to the Depositor, and  the Depositor agrees to accept from the Seller, such Additional Contracts and additional contributed property of the type described in clauses (ii) through (vii) of Section 2.1(a) herein (the “Additional Contributed Property” and, together with the Initial Contributed Property, the “Contributed Property”) as the Seller may specify by written notice to the Indenture Trustee, the Owner Trustee, the Trust and the Depositor.

 

(c)           The Seller and the Depositor intend that each transfer of Contributed Property contemplated by Section 2.1(a) and Section 2.1(b) constitutes a contribution of the Contributed Property, conveying good title to the related Contributed Property, from the Seller to the Depositor.  Notwithstanding the foregoing, in the event that the Contracts are held to be property of the Seller, or if for any reason this Agreement is held or deemed to create indebtedness or a security interest in the Contracts and the other Contributed Property, then it is intended that:

 

(i)            This Agreement shall be deemed to be a security agreement within the meaning of Articles 8 and 9 of the Relevant UCC;

 

(ii)           The transfers provided for in this Section 2.1 shall be deemed to be a grant by the Seller, and the Seller hereby grants to the Depositor, a security interest in all of its right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to the Contracts and the other Contributed Property, to secure such indebtedness and the performance of the obligations of the Seller hereunder;

 

(iii)          The possession by the Seller of the Contract Files and any other property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be “possession by the secured party” or possession by the purchaser or a person designated by such purchaser, for purposes of perfecting the security interest pursuant to the Relevant UCC; and

 

(iv)          Notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed to be

 

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notifications to, or acknowledgments, receipts or confirmations from, bailees or agents (as applicable) of, the Depositor for the purpose of perfecting such security interest under the Relevant UCC.

 

(d)           The conveyance, transfer and absolute contribution of the Contributed Property made under and pursuant to this Section 2.1 shall not constitute and is not intended to result in an assumption by the Depositor of any obligation of the Seller to the Obligors or any other Person in connection with the Contracts and the other Contributed Property or any agreement, document or instrument related thereto.

 

(e)           Upon each of the transfers of the Contributed Property pursuant to this Section 2.1, the Seller shall clearly mark its files, documents, books and any other records (including computer records) in the Seller’s control pertaining to the Contributed Property, in order to indicate that the Contributed Property has been conveyed, transferred and absolutely contributed to the Depositor.

 

(f)            The Depositor’s obligation to accept as a contribution the Additional Contributed Property pursuant to Section 2.1(b) is subject to satisfaction on or before the related Additional Contract Purchase Date of the following conditions precedent:

 

(i)            each of the representations and warranties of the Seller made pursuant to Section 2.2 with respect to the Contributed Contracts shall be true and correct as of the Additional Contract Purchase Date;

 

(ii)           the Seller shall have executed and delivered to the Depositor written assignments in the form of Exhibit A hereto conveying such Additional Contracts and Additional Contributed Property to the Depositor;

 

(iii)          release letters and related UCC-3 termination statements and/or amendment statements (for each appropriate jurisdiction), to release all security interests or similar rights of any Person in the Additional Contributed Property, including the security interests in the Financed Vehicles securing the Contracts and any proceeds of the foregoing;

 

(iv)          the Depositor shall have received the prior written consent of the Insurer; and

 

(v)           the Depositor and the Insurer shall have received such other documents as the Depositor or the Insurer may reasonably request.

 

(g)           It is explicitly agreed by the Seller and the Depositor that the Purchase Price delivered to the Seller by the Depositor pursuant to this Contribution Agreement shall (i) consist of the net proceeds from the sale of the Initial Contributed Property and Additional Contributed Property by Depositor to the Trust and (ii) be deemed to constitute a return on capital, and that

 

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the portion of the Purchase Price not conveyed by the Depositor to the Seller shall be deemed to constitute a capital contribution by the Seller to the Depositor.

 

Section 2.2.               Representations and Warranties of the Seller as to the Contracts.

 

The Seller makes the following representations and warranties as to the Contracts on which the Depositor shall be deemed to have relied in accepting the Contracts.  The representations and warranties speak as of the execution and delivery of this Agreement and, with respect to any Additional Contracts, as of the related Additional Contract Purchase Date, except to the extent otherwise provided, but shall survive the conveyance, transfer and absolute contribution of the Contracts to the Depositor pursuant to this Agreement,  the sale of the Contracts by the Depositor to the Trust, and the pledge of the Contracts to the Indenture Trustee pursuant to the Indenture.

 

(a)           Characteristics of Contracts.  Each Contract (i) has either (A) been purchased in a bona fide sale by the Seller from a dealer, bank, finance company or similar entity in the ordinary course of the Seller’s business and was originated by such Person in connection with an advance made for the sale or refinancing of a new or used automobile or light-duty truck and has been fully and properly executed by the parties thereto or (B) has been originated by the Seller through direct marketing to consumers who wish to refinance loans obtained by a different lender and, in the case of each of (A) and (B) above, is validly contributed by the Seller to the Depositor pursuant to, and in accordance with the terms of, this Agreement, (ii) has created a valid, binding and enforceable security interest in favor of the Seller in the related Financed Vehicle, which security interest has been validly assigned by the Seller to the Depositor, will be validly assigned by the Depositor to the Trust pursuant to the Sale and Allocation Agreement and will be validly assigned by the Trust to the Indenture