Exhibit 10.120


 


EXECUTION COPY


 


 




 


 





FIRST INVESTORS FINANCIAL SERVICES, INC.,


as Seller


 


and


 


FIRST INVESTORS AUTO FUNDING CORPORATION,


as Depositor


 










 


CONTRIBUTION AGREEMENT


 


Dated as of May 5, 2005


 










 


 




 
























 


TABLE OF CONTENTS


 


	
  Article I

  	
  Definitions

  	
   

  
	
  Section 1.1.

  	
  Definitional Provisions

  	
   

  
	
   

  	
   

  
	
  Article II

  	
  Contribution of Contracts

  	
   

  
	
  Section 2.1.

  	
  Contribution of Contracts

  	
   

  
	
  Section 2.2.

  	
  Representations and Warranties of the
  Seller as to the Contracts

  	
   

  
	
  Section 2.3.

  	
  Repurchase by the Seller upon Breach

  	
   

  
	
   

  	
   

  
	
  Article III

  	
  The Seller

  	
   

  
	
  Section 3.1.

  	
  Representations and Warranties of the
  Seller

  	
   

  
	
  Section 3.2.

  	
  Liability of the Seller; Indemnities

  	
   

  
	
  Section 3.3.

  	
  Limitation on Liability of the Seller and
  Others

  	
   

  
	
   

  	
   

  
	
  Article IV

  	
  Miscellaneous

  	
   

  
	
  Section 4.1.

  	
  Amendment

  	
   

  
	
  Section 4.2.

  	
  Protection of Title of Depositor

  	
   

  
	
  Section 4.3.

  	
  Governing Law

  	
   

  
	
  Section 4.4.

  	
  Notices

  	
   

  
	
  Section 4.5.

  	
  Severability of Provisions

  	
   

  
	
  Section 4.6.

  	
  Assignment

  	
   

  
	
  Section 4.7.

  	
  Further Assurances

  	
   

  
	
  Section 4.8.

  	
  No Waiver; Cumulative Remedies

  	
   

  
	
  Section 4.9.

  	
  Third-Party Beneficiaries

  	
   

  
	
  Section 4.10.

  	
  Actions by Noteholders

  	
   

  
	
  Section 4.11.

  	
  Counterparts

  	
   

  
	
  Section 4.12.

  	
  [Reserved]

  	
   

  
	
  Section 4.13.

  	
  No Bankruptcy

  	
   

  
	
  Section 4.14.

  	
  Certain Rights of the Insurer

  	
   

  
	
  Section 4.15.

  	
  Non-Confidential

  	
   

  
				



 


	
  Exhibits

  	
   

  
	
   

  	
   

  
	
  Exhibit A

  	
  Form of Additional Contract
  Assignment

  
	
   

  	
   

  
	
  Schedules

  	
   

  
	
   

  	
   

  
	
  Schedule 1

  	
  Schedule of Initial Contracts

  
	
  Schedule 2

  	
  Perfection Representations,
  Warranties and Covenants

  



 


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CONTRIBUTION AGREEMENT, dated as of May 5, 2005
(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 2005-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 (i) 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 indebtness 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 purchase 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 consist of the proceeds from the sale of the Conveyed Property
by Depositor to the Trust and that the remaining portion of the Purchase Price
shall be deemed to constitute a capital contribution by the Seller to the
Depositor.


 


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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 re-financing 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 Trustee pursuant to the Indenture, (iii) contains
customary and enforceable provisions such that the rights and remedies of the
holder thereof are adequate for realization against the collateral of the
benefits of the security, (iv) provides for level monthly payments that
fully amortize the Amount Financed by maturity (except that the period between
the date of such Contract and the date of the first Scheduled Payment may be
less than or greater than one month and the amount of the first and last
Scheduled Payments may be less than or greater than the level payments, but not
by a material amount) and yield interest at the related APR, (v) provides
for, in the event that such Contract is prepaid, a prepayment that fully pays
the Principal Balance of such Contract with interest at the related APR through
the date of payment, (vi) was selected by selection procedures believed by
the Seller not to be adverse to the Depositor and with respect to which
information provided to the Depositor and its assigns pursuant to the
Transaction Documents is true and correct in all material respects, (vii) is
secured by a new or used automobile or light-duty truck, (viii) relates to
an Obligor who has made a down payment under such Contract as of the applicable
Cutoff Date, if required, (ix) satisfies in all material respects the
requirements under the Credit Policy, and (x) requires the Obligor thereunder
to obtain and maintain physical damage insurance covering the related Financed
Vehicle in accordance with the Seller’s normal requirements.


 


(b)           Contract
Schedule.  The information set forth
in the Contract Schedule set forth on Schedule 1 hereto was true and
correct in all material respects as of the opening of business on the
applicable Cutoff Date, and no selection procedures believed to be adverse to
the Trust or the Noteholders were utilized in selecting the Contracts from
those retail installment sale 


 


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contracts or security agreements and promissory notes which met the
criteria contained herein.  The
information set forth in the compact disk or other listing regarding the
Contracts made available to the Trust and its assigns (which compact disk or
other listing is required to be delivered as specified herein) is true and
correct in all material respects.


 


(c)           Compliance
with Law.  Each Contract and the sale
of the related Financed Vehicle complied, at the time such Contract was
originated and complies, as of the related Purchase Date, in all material
respects with all requirements of applicable federal, state and local laws, and
regulations thereunder, including, without limitation, usury laws, the
Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair Credit
Reporting Act, the Fair Credit Billing Act, the Fair Debt Collection Practices
Act, the Federal Trade Commission Act, the Magnuson-Moss Warranty Act, the
Federal Reserve Board’s Regulations B and Z, the Servicemembers Civil Relief
Act and state adoptions of the National Consumer Act and the Uniform Consumer
Credit Code.


 


(d)           Binding
Obligation.  Each Contract represents
the genuine, legal, valid and binding payment obligation in writing of the related
Obligor, enforceable by the holder thereof in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors’ rights generally and
by general principles of equity.


 


(e)           No
Government or Incorporated Obligor. 
No Contract is due from the United States of America or any state
thereof or from any agency, department or instrumentality of the United States
of America or any state thereof or from any incorporated entity.


 


(f)            Security
Interest in Financed Vehicles. 
Immediately prior to the conveyance, transfer and absolute contribution
of the Contracts by the Seller to the Depositor, each Contract was secured by a
valid, binding and enforceable first priority perfected security interest in
favor of the Seller in the related Financed Vehicle and, at such time as
enforcement of such security interest is sought, there shall exist a valid,
binding and enforceable first priority perfected security interest in such
Financed Vehicle for the benefit of the Seller which is subject to regulatory
registration with a clear legal right of repossession in favor of the Seller.


 


(g)           Contracts
in Force.  No Contract has been
satisfied, subordinated or rescinded, nor has any Financed Vehicle been
released in whole or in part from the Lien granted by the related Contract.


 


(h)           No
Waiver.  No provision of a Contract
has been waived in such a manner that such Contract fails to meet all of the
representations and warranties made by the Seller in this Section 2.2
with respect thereto and no provision of any Contract has been waived except as
noted in the Contract Files.


 


(i)            No
Defenses.  No Contract is subject to
any right of rescission, setoff, counterclaim or defense, including the defense
of usury, and the operation of any of the terms of any Contract, or the
exercise of any right thereunder, will not render such Contract unenforceable 


 


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in whole or in part or subject to any right of rescission, setoff,
counterclaim or defense, including the defense of usury, and the Seller has not
received written notice of the assertion of any such right of rescission,
setoff, counterclaim or defense asserted with respect thereto.


 


(j)            No
Liens.  No liens or claims exist or
have been filed for work, labor or materials or unpaid state or federal taxes
relating to any Financed Vehicle that are prior to, or equal or coordinate
with, the security interest in such Financed Vehicle created by the related
Contract.


 


(k)           No
Default; Repossession.  No default,
breach, violation or event permitting acceleration under the terms of any
Contract has occurred (other than payments that are not more than 30 days past
due), no continuing condition that with notice or the lapse of time or both
would constitute a default, breach, violation or event permitting acceleration
under the terms of any Contract has arisen and no Financed Vehicle has been
repossessed as of the applicable Cutoff Date.


 


(l)            Contribution.  The Seller intends that the conveyance,
transfer and absolute contribution of the Contracts contemplated by Section 2.1
constitute an absolute contribution of the Contracts from the Seller to the
Depositor and that the beneficial interest in, and title to, the Contracts not
be part of the Seller’s estate in the event of the filing of a bankruptcy
petition by or against the Seller under any bankruptcy law.  The Seller has not sold, transferred,
assigned or pledged any Contract to any Person other than the Depositor and
such Contract has not been released.


 


(m)          Valid
Assignment.  No Contract has been
originated in, or is subject to the laws of, any jurisdiction under which the
contribution sale, transfer, assignment and conveyance of such Contract under
this Agreement or the sale under the Sale and Allocation Agreement or the
pledge of such Contract under the Indenture is unlawful, void or voidable.  No Contract is subject to any agreement with
any account debtor that prohibits, restricts or conditions the assignment of
the Contracts.


 


(n)           [Reserved]


 


(o)           [Reserved]


 


(p)           One
Original.  There is only one original
executed copy of each Contract.


 


(q)           Principal
Balance.  Each Contract acquired by
the Trust on the Closing Date had a Principal Balance as of the Initial Cutoff
Date of not more than $55,000 and each Contract acquired by the Trust during
the Prefunding Period had a Principal Balance as of the applicable Cutoff Date
of not more than $50,000.


 


(r)            No
Bankrupt Obligors.  As of the
applicable Cutoff Date, no Contract was due from an Obligor that was the
subject of a proceeding under the Bankruptcy Code of the United States or was
bankrupt.


 


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(s)           Term
to Maturity.  Each Contract had an
original term to maturity of not more than 84 months; provided, however,
that as of the Prefunding Account Ending Date the weighted average remaining
term of all contracts shall not exceed 57 months.


 


(t)            Annual
Percentage Rate.  Each Contract has
an APR of at least 5.0%; provided, however, that as of the
Prefunding Account Ending Date, the weighted average APR of all Contracts shall
not be less than 13.20%.


 


(u)           Location
of Contract Files.  The Contract
Files have been delivered to the Depositor prior to the applicable Purchase
Date;  provided, however,
that the Seller shall have 180 days after the date that the applicable Contract
is transferred to the Trust to deliver to the Depositor any certificate of
title or other evidence in lieu of a certificate of title contained in such
Contract File.


 


(v)           No
Delinquent Contracts or Defaulted Contracts.  As of the applicable Cutoff Date, no Contract
was a Delinquent Contract or a Defaulted Contract.


 


(w)          Offering
Memorandum Data.  The tabular and
numerical data contained in the Offering Memorandum relating to the
characteristics of the Contracts is true and correct in all material respects
as of the Initial Cutoff Date.


 


(x)            No
Defaults.  No Contract is due from an
Obligor that has previously defaulted on a retail installment sales contract or
promissory note and security agreement purchased by the Seller.


 


(y)           Final
Scheduled Payment Date.  As of the
applicable Cutoff Date, each Contract had a final scheduled payment on or
before July 31, 2011.


 


(z)            Originator
Agreement.  Each Contract is subject
to an Originator Agreement with the Seller and which if acquired by the Seller
pursuant to a “bulk purchase” from another Originator has been approved by the
Insurer.


 


(aa)         Lockbox.  The Obligor with respect to each contract has
been instructed to make payments under the Contract to a Lockbox which is under
the control of the Servicer.


 


(bb)         United
States Obligor.  Each Contract is due
from an Obligor which has provided as its most recent billing address an
address located in the United States of America.


 


(cc)         U.S.
Dollars.  Each Contract is payable in
the lawful money of the United States of America.


 


(dd)         No
Waiver or Modification.  No Contract
has been waived or modified as of the applicable Cutoff Date except as
permitted by the Servicing Agreement.


 


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(ee)         Perfection
Representations.  The perfection
representations, warranties and covenants made by the Depositor and set forth
on Schedule 2 hereto shall be a part of this Agreement for all
purposes.


 


(ff)           Direct
Program Origination.  Not less than
54.0% of the total portfolio of Contracts, after giving effect to the
Prefunding Period, shall have been originated through the Seller’s direct
origination program.


 


Section 2.3.           Repurchase by the Seller
upon Breach.


 


The
Depositor shall inform the Seller promptly, in writing, upon the discovery of
any breach or failure to be true of the representations and warranties made by
the Seller pursuant to Section 2.2 hereof.  If such breach or failure shall not have been
cured by the close of business on the last day of the Collection Period which
includes the thirtieth (30th) day after the date on which the Seller becomes
aware of, or receives written notice of such breach or failure, and such breach
or failure materially and adversely affects the interest of the Trust in a
Contract, the Seller shall purchase such Contract from the Depositor for such
contract’s Purchase Price on the Business Day preceding the Payment Date
immediately following such Collection Period. 
The sole remedy of the Depositor with respect to a breach or failure to
be true of the representations and warranties made by the Seller pursuant to Section 2.2
shall be to require the Seller to purchase Contracts pursuant to this Section 2.3.


 


Article III


 


The
Seller


 


Section 3.1.           Representations and
Warranties of the Seller.


 


The Seller makes the following representations and
warranties on which the Depositor shall be deemed to have relied in accepting
the Contributed Property.  The
representations and warranties speak as of the execution and delivery of this
Agreement and as of each Additional Contract Purchase Date and shall survive
the conveyance, transfer and absolute contribution of the Contributed Property
to the Depositor pursuant to this Agreement, the sale of the Trust Property
pursuant to the Sale and Allocation Agreement and the pledge of the Trust
Property to the Indenture Trustee pursuant to the Indenture:


 


(a)           Organization
and Good Standing.  The Seller has
been duly organized and is validly existing as a corporation in good standing
under the laws of the State of Texas, has the power, authority and legal right
to own its properties and to conduct its business as such properties are
currently owned and such business is currently conducted, and has the power,
authority and legal right to acquire, own and sell the Contracts.


 


(b)           Due
Qualification.  The Seller is duly
qualified to do business as a foreign corporation in good standing and has
obtained all necessary licenses and approvals in each 


 


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jurisdiction in which the failure to so qualify or to obtain such
licenses and approvals would, in the reasonable judgment of the Seller,
materially and adversely affect the performance by the Seller of its
obligations under, or the validity or enforceability of, this Agreement, any of
the other Transaction Documents, the Contracts or the Notes.


 


(c)           Power
and Authority.  The Seller has the
power and authority to execute, deliver and perform its obligations under this
Agreement and the other Transaction Documents to which it is a party.  The Seller has the power and authority to
sell, assign, transfer and convey the property to be contributed to and
deposited with the Depositor and has duly authorized such transfer and deposit
by all necessary corporate action, and the execution, delivery and performance
of this Agreement and the other Transaction Documents to which the Seller is a
party have been duly authorized by the Seller by all necessary corporate action.


 


(d)           Valid
Transfer; Binding Obligation.  This
Agreement effects a valid conveyance, transfer and absolute contribution to the
Depositor of the Contracts and the other Contributed Property enforceable
against creditors of and purchasers from the Seller.  This Agreement and the other Transaction
Documents to which the Seller is a party constitute legal, valid and binding
obligations of the Seller, enforceable against the Seller in accordance with
their terms, subject, as to enforceability, to applicable bankruptcy,
insolvency, reorganization, conservatorship, receivership, liquidation and
other similar laws and to general equitable principles.


 


(e)           No
Violation.  The execution, delivery
and performance by the Seller of this Agreement and the other Transaction
Documents to which the Seller is a party, the consummation of the transactions
contemplated hereby and thereby and the fulfillment of the terms hereof and
thereof will not conflict with, result in a breach of any of the terms and
provisions of or constitute (with or without notice or lapse of time or both) a
default under the certificate of incorporation or by-laws of the Seller or any
material indenture, agreement, mortgage, deed of trust or other instrument to
which the Seller is a party or by which the Seller is bound or to which any of
its properties are subject, or result in the creation or imposition of any lien
upon any of its properties pursuant to the terms of any such indenture,
agreement, mortgage, deed of trust or other instrument (other than pursuant to
this Agreement), or violate any law, order, rule or regulation applicable
to the Seller or its properties of any federal or state regulatory body, court,
administrative agency or other governmental instrumentality having jurisdiction
over the Seller or any of its properties.


 


(f)            No
Proceedings.  There are no
proceedings or investigations pending, or, to the knowledge of the Seller,
threatened, against the Seller before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality having
jurisdiction over the Seller or its properties (i) asserting the
invalidity of this, any of the other Transaction Documents to which the Seller
is a party (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or any of the other Transaction
Documents to which the Seller is a party, (iii) seeking any determination
or ruling that, in the reasonable judgment of the Seller, would materially and
adversely affect the performance by the Seller of its obligations under, or the
validity or enforceability of, this Agreement, any of the other 


 


10





















 


Transaction Documents to which the Seller is a party, or (iv) that,
in the reasonable judgment of the Seller, would adversely affect the federal or
Applicable Tax State income, excise, franchise or similar tax attributes of the
Notes or the Trust.


 


Section 3.2.           Liability of the Seller;
Indemnities.


 


(a)           The
Seller shall be liable in accordance herewith only to the extent of the
obligations specifically undertaken by the Seller under this Agreement.


 


(b)           Notwithstanding
any other provision in any Transaction Document, the Seller shall indemnify,
defend and hold harmless the Depositor from and against any taxes that may at
any time be asserted against any such Person with respect to, and as of the
date of, the transfer of the Contracts and Additional Contracts to the
Depositor or the issuance and original sale of the Notes, including any sales,
gross receipts, general corporation, tangible personal property, privilege or
license taxes (but, in the case of the Depositor, not including any taxes
asserted with respect to ownership of the Contracts and Additional Contracts or
federal or other Applicable Tax State income taxes arising out of the
transactions contemplated by this Agreement and the other Transaction
Documents), and all costs and expenses in defending against such taxes.


 


(c)           The
Seller shall pay any and all taxes levied or assessed upon all or any part of
the Depositor.


 


Indemnification under this Section 3.2
shall survive the termination of this Agreement and shall include reasonable
fees and expenses of counsel and expenses of litigation.  If the Seller shall have made any indemnity
payments pursuant to this Section 3.2 and the Person to or on
behalf of whom such payments are made thereafter shall collect any of such
amounts from others, such Person shall promptly repay such amounts to the
Seller, without interest.


 


Section 3.3.           Limitation on Liability of
the Seller and Others.


 


(a)           Neither
the Seller nor any of the directors, officers, employees or agents of the
Seller shall be under any liability to the Depositor or any other Person for
any action taken or for refraining from the taking of any action pursuant to
this Agreement or for errors in judgment; provided, however, that
this provision shall not protect the Seller or any such Person against any
liability that would otherwise be imposed by reason of willful misfeasance or
bad faith in the performance of duties or by reason of reckless disregard of
obligations and duties under this Agreement, or by reason of negligence in the
performance of duties under this Agreement (except for errors in
judgment).  The Seller, and its
directors, officers, employees and agents, may rely in good faith on the advice
of counsel or on any document of any kind prima  facie properly
executed and submitted by any Person in respect of any matters arising under
this Agreement.


 


(b)           The
Seller shall not be under any obligation to appear in, prosecute or defend any
legal action that shall not be incidental to its obligations under this
Agreement and that in its opinion may involve it in any expense or liability.


 


11





















 


Article IV


 


Miscellaneous


 


Section 4.1.           Amendment.


 


(a)           This
Agreement may be amended from time to time by the Seller and the Depositor,
with the consent of the Insurer (provided that no Insurer Default shall have
occurred and be continuing), but without the consent of any of the Noteholders;
provided, however, that any such amendment that materially
adversely affects the rights of the Noteholders, as evidenced by an Opinion of
Counsel delivered to the Depositor, the Owner Trustee, the Indenture Trustee
and the Insurer, must be consented to by Noteholders evidencing not less than
51% of the Class A Note Balance. 
Any such amendment shall be deemed not to materially and adversely
affect the interests of any Noteholder if the Rating Agency Condition is
satisfied or the Person requesting the amendment obtains an Opinion of Counsel
satisfactory to the Depositor, the Owner Trustee, the Indenture Trustee and the
Insurer to that effect.


 


(b)           [Reserved]


 


(c)           Prior
to the execution of any amendment or consent pursuant to Section 4.1(a),
the Seller and the Depositor shall provide, or shall cause to be provided,
written notification of the substance of such amendment or consent to each
Rating Agency and the Insurer.


 


(d)           Promptly
after the execution of any amendment or consent pursuant to Section 4.1(a),
the Depositor shall furnish written notification of the substance of such
amendment or consent to the Indenture Trustee and each of the Rating
Agencies.  It shall not be necessary for
the consent of the Noteholders pursuant to Section 4.1(a) to
approve the particular form of any proposed amendment or consent, but it shall
be sufficient if such consent shall approve the substance thereof.  The manner of obtaining such consents (and
any other consents of the Noteholders provided for in this Agreement) and of
evidencing the authorization of the execution thereof by the Noteholders shall
be subject to such reasonable requirements as the Owner Trustee and the
Indenture Trustee may prescribe.


 


(e)           Prior
to the execution of any amendment pursuant to this Section 4.1, the
Owner Trustee and the Indenture Trustee shall be entitled to receive and rely
upon (i) an Opinion of Counsel stating that the execution of such
amendment (A) is authorized or permitted by this Agreement, (B) will
not materially adversely affect the federal or any Applicable Tax State income
or franchise taxation of any Outstanding Note or any Holder thereof and (C) will
not cause the Trust to be taxable as a corporation for federal or any
Applicable Tax State income or franchise tax purposes and (ii) an Officer’s
Certificate of the Seller that all conditions precedent provided for in this
Agreement to the execution of such amendment have been complied with.  The Owner Trustee or the Indenture Trustee
may, but shall not be obligated to, enter into any such amendment which affects
such Owner Trustee’s or Indenture Trustee’s own rights, duties or immunities
under this Agreement or otherwise.


 


12





















 


Section 4.2.           Protection of Title of Depositor.


 


(a)           The
Seller shall authorize and file, or shall cause to be authorized and filed,
such financing statements and shall authorize and file, or shall cause to be
authorized and filed, such continuation statements, all in such manner and in
such places as may be required by law fully to preserve, maintain and protect
the interest of the Depositor in the Contracts and the proceeds thereof.  The Seller shall deliver, or shall cause to
be delivered, to the Depositor, the Owner Trustee, the Insurer and the
Indenture Trustee file-stamped copies of, or filing receipts for, any document
filed as provided above as soon as available following such filing.


 


(b)           The
Seller shall not change (i) its name, identity or corporate structure in
any manner that would make any financing statement or continuation statement
filed by the Seller in accordance with Section 4.2(a) seriously
misleading within the meaning of Section 9-507 of the Relevant UCC or (ii) its
jurisdiction of organization, unless, in each case it shall have given the
Owner Trustee, the Insurer and the Indenture Trustee at least sixty (60) days’
prior written notice thereof and shall have promptly filed such amendments to
previously filed financing statements or continuation statements or such new
financing statements as may be necessary to continue the perfection of the
interest of the Depositor in the Contracts and the proceeds thereof.


 


(c)           The
Seller shall give the Depositor, Owner Trustee, the Insurer and the Indenture
Trustee at least sixty (60) days’ prior written notice of any relocation of its
principal executive office or change of its jurisdiction of formation and shall
promptly file any such amendment, continuation statement or any new financing
statement.


 


(d)           If
at any time the Seller shall propose to sell, grant a security interest in, or
otherwise transfer any interest in any motor vehicle retail installment sale
contract or security interest and promissory note to any prospective purchaser,
lender or other transferee, the Seller shall give (or shall cause to be given)
to such prospective purchaser, lender or other transferee computer tapes,
compact disks, records or print-outs (including any restored from back-up
archives) that, if they shall refer in any manner whatsoever to any Contract, shall
indicate clearly that such Contract has been Transferred to the Depositor.


 


Section 4.3.           Governing Law.


 


This Agreement shall be construed in accordance with
the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties under this
Agreement shall be determined in accordance with such laws.


 


Section 4.4.           Notices.


 


All demands, notices and other communications under
this Agreement shall be in writing, personally delivered, sent by telecopier,
overnight courier or mailed by certified mail, return receipt requested, and
shall be deemed to have been duly given upon receipt (a) in the case of
the Seller, at the following address: 675 Bering Drive, Suite 710,
Houston, Texas 77057 Attention: Bennie Duck, (b) in the case of the
Depositor, at the following address: 675 Bering Drive, Suite 710, 


 


13





















 


Houston,
Texas 77057 Attention: Bennie Duck, (c) in the case of the Owner Trustee,
at the related Corporate Trust Office, with a copy to Wells Fargo Delaware
Trust Company, 919 North Market Street, Suite 700, Wilmington, DE 19801
Attention:  Corporate Trust
Administration, (d) in the case of the Indenture Trustee, at the related
Corporate Trust Office, (e) in the case of Moody’s, at the following
address: Moody’s Investors Service, Inc., 99 Church Street, 4th Floor, New
York, New York 10007, ServicerReports@moodys.com, Attn: Yan Yan, with an
additional copy to Moody’s Investors Service, Inc., 99 Church Street, 4th
Floor, New York, New York 10007, Attn: ABS Monitoring Department, (f) in
the case of S&P, if available electronically, at
Servicer_reports@sandp.com, and if not available electronically, at the
following address: Standard & Poor’s Ratings Services, a division of
The McGraw-Hill Companies, Inc., 55 Water Street, 43rd Floor, New York,
New York 10041, Attention: ABS Surveillance Group, and (g) in the case of
the Insurer, at the following address: 
MBIA Insurance Corporation, 113 King Street, Armonk, New York 10504,
Attention: Insured Portfolio Management, Structured Finance.


 


Section 4.5.           Severability of Provisions.


 


If any one or more of the covenants, agreements,
provisions or terms of this Agreement shall be for any reason whatsoever held
invalid, then such covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the
other provisions of this Agreement.


 


Section 4.6.           Assignment.


 


Notwithstanding anything to the contrary contained
herein to the contrary, this Agreement may not be assigned by the Seller
without the prior written consent of the Depositor.


 


Section 4.7.           Further Assurances.


 


The Seller agrees to do and perform, from time to
time, any and all acts and to execute any and all further instruments required
or reasonably requested by the Depositor to effect more fully the purposes of
this Agreement, including, without limitation, the execution of any financing
statements or continuation statements relating to the Contracts for filing
under the provisions of the Relevant UCC of any applicable jurisdiction.


 


Section 4.8.           No Waiver; Cumulative
Remedies.


 


No failure to exercise and no delay in exercising, on
the part of any Person, of any right, remedy, power or privilege hereunder,
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privileges
provided in this Agreement are cumulative and not exhaustive of any rights,
remedies, powers and privileges provided by law.


 


14





















 


Section 4.9.           Third-Party Beneficiaries.


 


This Agreement shall inure to the benefit of and be
binding upon the parties hereto, the Noteholders, the Owner Trustee, the
Indenture Trustee and their respective successors and permitted assigns.  Except as otherwise provided in Section 3.2
and this Article IV, no other Person shall have any right or
obligation hereunder.  The parties hereto
hereby acknowledge and consent to the pledge of this Agreement by the Trust to
the Indenture Trustee for the benefit of the Noteholders and the Insurer
pursuant to the Indenture.  The Insurer
is an express third party beneficiary of this Agreement and is entitled to
enforce the provisions hereof as if a party hereto.


 


Section 4.10.        Actions by Noteholders.


 


(a)           Wherever
in this Agreement a provision is made that an action may be taken or a notice,
demand or instruction given by the Noteholders, such action, notice or
instruction may be taken or given by any Noteholder, as applicable, unless such
provision requires a specific percentage of the Noteholders.


 


(b)           Any
request, demand, authorization, direction, notice, consent, waiver or other act
by a Noteholder shall bind such Noteholder and every subsequent Holder of such
Note issued upon the registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done or omitted to be done by the
Depositor, Owner Trustee, the Indenture Trustee or the Servicer in reliance
thereon, whether or not notation of such action is made upon such Note.


 


Section 4.11.        Counterparts.


 


For the purpose of facilitating the execution of this
Agreement and for other purposes, this Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to be
an original, and all of which counterparts shall constitute but one and the
same instrument.


 


Section 4.12.        [Reserved].


 


Section 4.13.        No Bankruptcy.


 


The Trust and the Depositor each covenants and agrees
that, prior to the date which is one year and one day after the payment in full
of all securities issued by the Trust, which securities were rated by any
nationally recognized statistical rating organization, it will not institute
against, or join any other Person in instituting against, or knowingly or
intentionally cooperate or encourage any other Person in instituting against,
the Trust or the Depositor any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other proceedings under any federal or
state bankruptcy or similar law.  This Section 4.13
shall survive the resignation or removal of the Owner Trustee under the Trust
Agreement and the Indenture Trustee under the Indenture and shall survive the
termination of the Trust Agreement and the Indenture.


 


15





















 


Section 4.14.        Certain Rights of the
Insurer.


 


So long as no Insurer Default shall have occurred and
be continuing, the Insurer shall have the right to exercise all rights,
including voting rights, which the Class A Noteholders are entitled to
exercise pursuant to this Contribution Agreement, without any consent of such Class A
Noteholders; provided, however, that the foregoing shall not
apply to the rights of the Class A Noteholders set forth in the proviso to
paragraph (a) of Section 4.1 of this Agreement.


 


Section 4.15.        Non-Confidential.


 


Notwithstanding anything herein or in any express or
implied agreement or understanding to the contrary, any party to this Agreement
(and any employee, representative or other agent of any party to this
Agreement) may disclose to any and all persons, without limitation of any kind,
the tax treatment and tax structure of the transactions contemplated by this
Agreement and all materials of any kind (including opinions or other tax
analyses) that are provided to it relating to such tax treatment and tax
structure; provided, however, that such disclosure may not be
made to the extent required to be kept confidential to comply with any
applicable federal or state securities laws; and provided  further
that (to the extent not inconsistent with the foregoing) such disclosure shall
be made without disclosing the names or other identifying information of any
party.


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


 


16





















 


IN WITNESS WHEREOF, the parties hereto have caused
this Contribution Agreement to be duly executed by their respective officers,
thereunto duly authorized, all as of the day and year first above written.


 


	
   

  	
  FIRST INVESTORS
  FINANCIAL SERVICES,

  INC., as Seller

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FIRST INVESTORS
  AUTO FUNDING

  CORPORATION, as Depositor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


17





















 


Schedule 1


 


Contract Schedule


 





















 


Schedule 2


 


Perfection Representations, Warranties and
Covenants


 


In
addition to the representations, warranties and covenants contained in this
Agreement, the Seller hereby represents, warrants, and covenants to the
Depositor as follows on the Closing Date and on each Additional Contract
Purchase Date on which the Depositor purchases Contracts, in each case only
with respect to the Contributed Property conveyed, transferred and absolutely
contributed to the Depositor on the Closing Date or the relevant Additional Contract
Purchase Date:


 


General


 


1.             The Agreement creates a valid and continuing security
interest (as defined in the Relevant UCC Section 9-102) in the Contributed
Property in favor of the Depositor, which security interest is prior to all
other Liens, except as set forth below and is enforceable as such against
creditors of and purchasers from and assignees of the Depositor.


 


2.             Each Contract constitutes “tangible chattel paper” and
not “electronic chattel paper”, within the meaning of the Relevant UCC Section 9-102.


 


3.             The Seller has taken or will take all steps necessary
actions with respect to the Contracts to perfect the security interest of the
Depositor in the Contracts .


 


Creation


 


1.             The Seller owns and has good and marketable title to the
Contributed Property, free and clear of any Lien, claim or encumbrance of any
Person, excepting only tax liens, some mechanics’ liens and other liens that
arise by the operation of law, in each case on any of the Financed Vehicles and
arising solely as a result of an action or omission of the related Obligor.


 


Perfection


 


1.             The Seller has caused the filing of all appropriate
financing statements in the proper filing office in the appropriate
jurisdictions under applicable law in order to perfect the security interest in
the Contributed Property absolutely contributed to the Depositor under this
Agreement.


 


2.             With respect to Contributed Property that constitutes
tangible chattel paper, such tangible chattel paper is in the possession of the
Depositor (it being understood that the Depositor will deliver such tangible
chattel paper to the Custodian and that the Depositor will receive a written
acknowledgment from the Custodian that it is holding such tangible chattel
paper solely on its behalf and for the benefit of the Depositor).  All financing statements filed or to be filed
against the Seller in favor of the Depositor in connection with this Agreement
describing the Contributed Property contain a statement to the following effect:
“A purchase of or security interest in any collateral described in this
financing statement will violate the rights of the Secured Party.”


 


2-1





















 


Priority


 


1.             Other than the security interest granted to the
Depositor pursuant to this Agreement, the Seller has not pledged, assigned,
sold, granted a security interest in, or otherwise conveyed any of the
Contributed Property.  The Seller has not
authorized the filing of, or is not aware of any financing statements against
the Seller that includes a description of the Contributed Property and proceeds
related thereto other than any financing statement (i) relating to the
transfer of the Contracts by the Seller to the Depositor under this Agreement;
or (ii) that has been terminated or amended to reflect a release of the
Contributed Property.


 


2.             The Seller is not aware of any judgment, ERISA or tax
lien filings against the Seller.


 


3.             None of the tangible chattel paper that constitutes or
evidences the Contracts has any marks or notations indicating that it has been
pledged, assigned or otherwise conveyed to any Person other than the Depositor.


 


Survival of Perfection Representations


 


1.             Notwithstanding any other provision of this Agreement,
the Sale and Allocation Agreement, the Indenture or any other Transaction
Document, the Perfection Representations, Warranties and Covenants contained in
this Schedule shall be continuing, and remain in full force and effect
until such time as all obligations under this Agreement, the Sale and
Allocation Agreement and the Indenture have been finally and fully paid and
performed.


 


No Waiver


 


1.             The parties hereto: (i) shall not, without
obtaining a confirmation of the then-current ratings of each Class of the Class A
Notes (without giving effect to the Policy), waive any of the Perfection
Representations, Warranties or Covenants; (ii) shall provide the Rating
Agencies with prompt written notice of any breach of the Perfection
Representations, Warranties or Covenants, and shall not, without obtaining a
confirmation of the then-current ratings of each Class of the Class A
Notes (without giving effect to the Policy) as determined after any adjustment
or withdrawal of the ratings following notice of such breach) waive a breach of
any of the Perfection Representations, Warranties or Covenants.


 


2-2





















 


Exhibit A


 


Form Of Subsequent Contribution Agreement


 


For value received, in accordance with the
Contribution (the “Contribution Agreement”),
dated as of May 5, 2005, by and between First Investors Financial Services, Inc.
and First Investors Auto Funding Corporation, the undersigned does hereby
convey, transfer and absolutely contribute unto the Depositor, without recourse
(subject to the obligations in the Contribution Agreement) all right, title and
interest of the Seller in and to (i) the Additional Contracts listed on Schedule 1
hereto, (ii) all amounts received on or in respect of such Additional
Contracts after the Additional Cutoff Date related thereto; (iii) the
security interests in the Financed Vehicles related thereto; (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
with respect to such Additional Contracts; (v) any Liquidation Proceeds
with respect to such Additional Contracts; (vi) the Contract Files with
respect to such Additional Contracts; and (vii) and 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.


 


All provisions of the Contribution Agreement are
incorporated herein by reference.  All
capitalized terms not defined herein shall have the meanings set forth in the
Contribution Agreement.


 


It is explicitly agreed by the Seller and the
Depositor that the Purchase Price delivered to the Seller by the Depositor
pursuant to this Subsequent Contribution Agreement shall consist of the
proceeds from the sale of the Additional Conveyed Property by the Depositor to
the Trust and that the remaining portion of the Purchase Price shall be deemed
to constitute a capital contribution by the Seller to the Depositor (it being
understood that the Seller has a 100% ownership interest in the Depositor).


 


The Seller does hereby make each of the
representations and warranties referred to in Section 2.2 of the
Contribution Agreement with respect to this Subsequent Contribution Agreement
with full force and effect as if fully set forth herein.  The Seller does hereby certify that each of
the conditions precedent set forth in Section 2.1(f) of the
Contribution Agreement has been satisfied.


 


A-1





















 


This Subsequent Contribution Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York, without giving effect to the conflicts of laws principles thereof.


 


IN WITNESS WHEREOF, the undersigned has caused this
Subsequent Contribution Agreement to be executed by its officer thereunto duly
authorized, as of                                 ,
200[  ].


 


	
   

  	
  FIRST INVESTORS
  FINANCIAL SERVICES, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


A-2





















 


Schedule 1


to


Additional Contract Assignment


Dated


                    ,
2005


 


List of Additional Contracts