EXHIBIT 10.61
EXECUTION COPY
GUARANTY
THIS GUARANTY (this "Guaranty") is entered into as of March 31, 1999, by
First Investors Financial Services, Inc. (the "Guarantor"), First Investors Auto
Receivables Corporation (the "Transferor"), Auto Lenders Acceptance Corporation
("ALAC"), and Norwest Bank Minnesota, National Association, as Back-up Servicer
(the "Back-up Servicer") and as Collateral Agent (as successor to Chase Bank of
Texas, predecessor Collateral Agent) on behalf of the Noteholders and the Surety
(as defined herein) (the "Collateral Agent").
WHEREAS, the Guarantor has sold certain Receivables, and will sell
additional Receivables, along with its security interest in each Financed
Vehicle to the Transferor pursuant to the Receivables Purchase Agreement dated
as of October 22, 1996 as amended and supplemented by and between the Guarantor
and the Transferor wherein the Guarantor has made certain representations and
warranties.
WHEREAS, pursuant to that certain Servicing Agreement dated as of March
31, 1999 (the "Servicing Agreement") by and among the Transferor, ALAC, as
Servicer and the Collateral Agent, as Collateral Agent and Back-up Servicer,
ALAC shall agree to perform certain servicing obligations.
WHEREAS, pursuant to that certain Security Agreement dated as of October
22, 1996 between the Transferor, MBIA Insurance Corporation, as Surety Bond
Provider (the "Surety"), the Guarantor, as Seller, NationsBank, N.A., as Reserve
Account Agent (the "Reserve Account Agent"), Enterprise Funding Corporation, as
Company (the "Company") and the Collateral Agent (as amended and supplemented,
the "Security Agreement"), the Transferor pledged the Receivables and its
security interest in the Financed Vehicles to the Collateral Agent to secure the
Note issued pursuant to the Security Agreement.
WHEREAS, the Surety issued its surety bond (the "Surety Bond") pursuant to
the Insurance Agreement dated as of October 1, 1996, by and among the Surety,
the Seller, the Transferor, the Guarantor, the Collateral Agent and the Reserve
Account Agent, as amended by the Amendment No. 1 to Insurance Agreement dated as
of March 31, 1999 (as amended, the "Insurance Agreement") by and among the
Surety, ALAC, as Servicer, the Seller, the Transferor, the Guarantor, the
Collateral Agent, the Back-up Servicer and the Reserve Account Agent.
WHEREAS, the Guarantor will receive substantial direct and indirect
benefits from the transactions contemplated by the Receivables Purchase
Agreement, the Note Purchase Agreement, the Servicing Agreement, the Security
Agreement and the Insurance Agreement (the "Transaction Documents").
WHEREAS, it is a condition precedent to the Surety's consent to the
Servicing Transfer that the Guarantor execute this Guaranty and deliver it to
the Collateral Agent;
NOW, THEREFORE, in consideration of the consent to the Servicing Transfer
and the execution of the documents relating thereto by the Surety and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the Guarantor, the parties hereto agree as follows:
Section 1. DEFINITIONS. Unless otherwise defined in this Guaranty, all
defined terms used in this Guaranty shall have the meanings ascribed to such
terms in the Insurance Agreement.
Section 2. GUARANTY OF OBLIGATIONS. The Guarantor hereby (with respect to
its payment obligations, to the extent not otherwise paid pursuant to Section
5.1 of the Security Agreement): (a) absolutely, irrevocably and unconditionally
guarantees the full and timely payment and performance of all obligations of
ALAC as Servicer under the Servicing Agreement and other Transaction Documents
to which ALAC is a party including, without limitation, (i) the servicing and
collecting of the Receivables pursuant to the Servicing Agreement, (ii) the
making of deposits and remittances into the Collection Account when required to
be made in accordance with the terms of the Servicing Agreement and (iii) the
payment of all amounts, reimbursements and indemnities payable by ALAC pursuant
to the Servicing Agreement and the other Transaction Documents to which ALAC is
a party; (b) absolutely, irrevocably and unconditionally agrees to pay and
guarantees the full and timely payment of all reasonable cost and expenses
(including, without limitation, attorneys' fees and legal expenses) associated
with the transition of servicing from ALAC, as Servicer, to a successor Servicer
pursuant to the terms of the Servicing Agreement; (c) absolutely, irrevocably
and unconditionally agrees to pay and guarantees the full and timely payment of
all costs and expenses (including, without limitation, attorneys' fees and legal
expenses) associated with the re-xxxxxxx of the Financed Vehicles pursuant to
the terms of the Servicing Agreement; (d) absolutely, irrevocably and
unconditionally agrees to pay and guarantees the full and timely payment of all
litigation costs and expenses (including, without limitation, attorneys' fees
and legal expenses) of ALAC and its affiliates in connection with or arising out
of the Servicing Transfer; (e) absolutely, irrevocably and unconditionally
agrees to pay and guarantees the full and timely payment of all state taxes
imposed on ALAC in connection with the Servicing Agreement; (f) absolutely,
irrevocably and unconditionally agrees to pay and guarantees the full and timely
payment of all losses, damages, claims, defenses, liabilities, costs and
expenses (including, without limitation, attorneys' fees and legal expenses) of
the Transferor, the Collateral Agent, the Noteholder and the Surety for
enforcement against ALAC of any obligations of ALAC under the Transaction
Documents to which it is a party; (g) absolutely, irrevocably and
unconditionally agrees to pay and guarantees the full and timely payment of all
losses, damages, claims, defenses, liabilities, costs and expenses (including,
without limitation, attorneys' fees and legal expenses) of the Transferor, the
Collateral Agent, the Noteholder and the Surety arising out of, or resulting
from, any litigation, proceedings, investigations, determinations, settlements
or rulings over ALAC or its properties that (1) assert the invalidity of any of
the Transaction Documents with respect to ALAC or the Guarantor, (2) seek to
prevent or void with respect to ALAC any of the transactions
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contemplated by the Transaction Documents or (3) affect the performance by ALAC
of any of its obligations under the Transaction Documents or affect the validity
or enforceability thereof; (h) absolutely, irrevocably and unconditionally
agrees to pay and guarantees the full and timely payment of all losses, damages,
claims, defenses, liabilities, costs and expenses (including, without
limitation, attorneys' fees and legal expenses) of the Transferor, the
Collateral Agent, the Noteholder and the Surety arising out of, or resulting
from, the negligence, misfeasance or bad faith of ALAC to the extent not
recovered from ALAC pursuant to Section 7.18 of the Servicing Agreement or
Section 3.04 of the Insurance Agreement. The obligations under this Section 2
shall be referred to herein as the "Obligations."
The Guarantor shall have no obligation to guaranty any obligations of any
Person other than ALAC, including without limitation any obligation of the
Obligors under the Receivables.
Section 3. UNCONDITIONAL; IRREVOCABILITY. (a) This is an absolute,
unconditional and continuing guaranty of payment and performance of all
Obligations, and the Guarantor agrees that its obligations under this Guaranty
shall be irrevocable. The dissolution, insolvency or adjudication of bankruptcy
of the Guarantor shall not revoke this Guaranty.
(b) No act or thing need occur to establish the liability or obligation of
the Guarantor hereunder, and no act or thing, except full payment, discharge and
performance of all Obligations, shall in any way exonerate the Guarantor
hereunder or modify, reduce, limit or release the liability of Guarantor
hereunder. The Guarantor waives all presentments, demands for performance,
notices of dishonor and notices of acceptance of this Guaranty. The Collateral
Agent or the Surety shall not be required first to resort to payment of the
Obligations by ALAC or other Person, or their properties, before enforcing this
Guaranty. Until payment in full of the Obligations, the Obligations of the
Guarantor under this Guaranty shall not be affected, modified or impaired upon
the happening from time to time of any event, including, without limitation, the
events described in Section 4 herein, whether or not with notice to or the
consent of the Guarantor.
(c) The Guarantor further agrees that, if any payment applied by
Collateral Agent to the Obligations is thereafter set aside, recovered,
rescinded or required to be returned for any reason (including, without
limitation, the bankruptcy, insolvency or reorganization of ALAC or any other
obligor), the Obligations to which such payment was applied shall for the
purpose of this Guaranty be deemed to have continued in existence,
notwithstanding such payment, and this Guaranty shall be enforceable as to such
Obligations as fully as if such payment had never been made. The provisions of
this Section 3(c) hereof shall survive any termination of this Guaranty.
Section 4. CONTINUATION AND VALIDITY OF OBLIGATIONS. The liability of the
Guarantor shall not be affected or impaired by any of the following events: (a)
the validity, enforceability, discharge, disaffirmance, settlement or compromise
(by any Person, including a trustee in bankruptcy or other similar official) of
the Obligations or of the Transaction Documents, (b) the absence of any attempt
to collect the Obligations from ALAC or any guarantor or other Person, (c) the
waiver or consent by the Collateral Agent, the Surety, the Noteholder or any
other Person
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with respect to any provision of any instrument or agreement evidencing the
Obligations, any delay or lack of diligence in the enforcement of the
Obligations, or any failure to institute proceedings, file a claim, give any
required notices or otherwise protect the Obligations, (d) any change of the
time, manner or place of payment or performance, or any other term of any of the
Obligations, (e) any law, regulation or order of any jurisdiction affecting any
term of any of the Obligations or rights of the Collateral Agent or the Surety
with respect thereto, (f) the failure by the Collateral Agent to take any steps
to perfect and maintain perfected its interest in the Receivables, Financed
Vehicles or other property acquired by the Collateral Agent from the Transferor
or any security or collateral related to the Obligations, (g) the commencement
of any bankruptcy, insolvency or similar proceeding with respect to ALAC or the
Transferor or any other affiliate of ALAC, (h) any full or partial release of,
compromise or settlement with, or agreement not to xxx, ALAC or any guarantor or
other person liable in respect of any Obligations, (i) any release, surrender,
cancellation or other discharge of any evidence of the Obligations or the
acceptance of any instrument in renewal or substitution therefor, (j) any
collection, sale, lease or disposition of, or any other enforcement of or
realization on, any Receivable or Financed Vehicle, (k) any assignment, pledge
or other transfer of the Obligations or any evidence thereof, (l) any acceptance
of collateral security, guarantors, accommodation parties or sureties for any or
all Obligations, (m) any change in the existing relationship between the
Guarantor and ALAC including, without limitation, any sale or other transfer of
the stock of ALAC by the Guarantor or (n) any legal or equitable discharge or
defense of the Guarantor. To the full extent permitted by applicable law, the
Guarantor waives any and all defenses and discharges available to a surety,
guarantor or accommodation co-obligor.
Section 5. REPRESENTATIONS AND WARRANTIES. The Guarantor hereby represents
and warrants to the Collateral Agent, the Noteholder, ALAC and the Surety as
follows:
(a) ORGANIZATION, ETC. The Guarantor is a corporation duly
organized, validly existing and in good standing under the laws of the
state of Texas and has full corporate power, authority and legal right to
own or lease all of its properties and assets, to carry on its business as
it is now being conducted and to execute, deliver and perform this
Guaranty. The Guarantor is duly qualified as a foreign corporation in good
standing under the laws of each other jurisdiction in which the nature of
its business requires such qualification and in which failure to so
qualify would render this Guaranty unenforceable or would have an adverse
effect on the Guarantor's ability to perform its obligations under this
Guaranty.
(b) AUTHORIZATION/VALID AGREEMENT. The Guarantor has the power and
authority to execute and deliver this Guaranty and to carry out its terms.
The execution, delivery and performance of this Guaranty have been duly
authorized by all required corporate or other action on the part of the
Guarantor, and this Guaranty constitutes the legal, valid and binding
obligation of the Guarantor, enforceable in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation or other
similar laws affecting the enforcement of creditors' rights generally and
by general equitable principles.
(c) NO CONFLICTS. The execution, delivery and performance by the
Guarantor of this Guaranty does not and will not (i) contravene its
articles of incorporation or bylaws, (ii) violate any provision of, or
require any filing, registration, consent or approval under, any law,
rule, regulation, order, writ, judgment, injunction, decree, determination
or award presently in effect having applicability to the Guarantor, (iii)
result in a breach of or constitute a default or require any consent under
any indenture or loan or credit agreement or any other agreement, lease or
instrument to which the Guarantor is a party or by which it or its
properties may be bound or affected or (iv) result in, or require, the
creation or imposition of any lien upon or with respect to any of the
properties now owned or hereafter acquired by the Guarantor.
(d) NO PROCEEDINGS. There are no proceedings or investigations
pending, or, to the best knowledge of the Guarantor, threatened against
the Guarantor before any governmental authority (i) asserting the
invalidity of this Guaranty, (ii) seeking to prevent the consummation of
the transactions contemplated by this Guaranty, (iii) seeking any
determination or ruling that would adversely affect the performance by the
Guarantor of its obligations under this Guaranty or (iv) seeking any
determination or ruling that would adversely affect the validity or
enforceability of this Guaranty.
(e) NO CONSENTS. No consent, approval, authorization or order of or
declaration, filing or registration with any governmental authority or
other Person is required in connection with the execution, delivery or
performance of this Guaranty, except such as have been duly made or
obtained.
(f) BENEFITS. The Guarantor has a direct and substantial economic
interest in ALAC and expects to derive substantial benefits, directly and
indirectly therefrom and from the transaction described in the Transaction
Documents, any loans, credit transactions, financial accommodations,
discounts, purchases of property and other transactions and events
resulting in the creation of Obligations, and this Guaranty shall be
effective and enforceable by the Collateral Agent and the Surety without
regard to the receipt, nature or value of any such benefits.
Section 6. INDEPENDENT OBLIGATIONS. The obligations of the Guarantor
hereunder are undertaken as primary obligor and independently of, the
obligations of ALAC, or any other obligor, guarantor or Person, and action or
actions may be brought or prosecuted directly against the Guarantor whether or
not action is brought first or at all against ALAC or any other obligor,
guarantor or Person, against any collateral security or any other circumstance
whatsoever, and whether or not ALAC, or any other obligor, guarantor or Person
is joined in any such action or actions, or any claims or demands are made or
are not made, or any action is taken on or against ALAC, any other obligor,
guarantor or Person or any collateral security or otherwise.
Section 7. WAIVERS. The Guarantor waives any and all defenses, claims,
setoffs and discharges of ALAC, or any other obligor, pertaining to the
Obligations. Without limiting the
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generality of the foregoing or any other provision hereof, to the fullest extent
permitted by applicable law, the Guarantor hereby waives: (a) any defense
arising by reason of any invalidity or unenforceability of ALAC's obligations in
respect of the Transaction Documents, any manner in which the Collateral Agent,
the Surety or the Noteholders have exercised (or not exercised) any rights and
remedies under the Transaction Documents, or any cessation from any cause
whatsoever of the liability of ALAC or any other obligor, guarantor or Person;
(b) all presentments, demands for performance, notices of nonperformance,
protests, notices of protest, notices of dishonor and notices of acceptance of
the Transaction Documents; (c) any release of any of the Collateral provided
under the Security Agreement or other Transaction Documents; (d) notice of any
indulgences, extensions, consents or waivers given to ALAC or any other obligor,
guarantor or Person, notice of the occurrence of any default or Servicer
Termination Event under the Servicing Agreement, any default or Event of Default
under the Security Agreement or default or event of default under any of the
other Transaction Documents, or other notice of any kind whatsoever; (e) any
right or claim of right to cause the Collateral Agent, the Surety or the
Noteholders to proceed against ALAC or any other obligor, guarantor or Person in
any particular order, to proceed against or exhaust any collateral security held
by the Collateral Agent, the Surety or the Noteholders at any time or to pursue
any other right or remedy whatsoever at any time; (f) any requirement of
diligence or promptness on the Collateral Agent's, the Surety's or Noteholder's
part in (X) making any claim or demand on or commencing suit against ALAC or any
other obligor, guarantor or Person, and (Y) otherwise enforcing the Collateral
Agent's, the Surety's or Noteholder's rights in respect of the Servicing
Agreement or the other Transaction Documents; (g) any defense of waiver,
release, discharge in bankruptcy, statute of limitations, res judicata, statute
of frauds, anti-deficiency statute, fraud, usury, illegality or unenforceability
which may be available to ALAC or any other person liable in respect of any
Obligations, or any setoff available against the Collateral Agent or the Surety
to ALAC or any other such person, whether or not on account of a related
transaction and (h) any duty of the Collateral Agent, the Surety or Noteholders
to advise the Guarantor of any information known to the Collateral Agent, the
Surety or Noteholders regarding the financial condition of ALAC or any other
circumstance, it being agreed that the Guarantor assumes responsibility for
being and keeping informed of such condition or any such circumstance.
Without limiting the generality of the foregoing, to the fullest extent
permitted by applicable law, the Guarantor specifically waives all defenses the
Guarantor may have based upon any election of remedies by the Collateral Agent,
the Surety or the Noteholders which destroys the Guarantor's rights to proceed
against ALAC or any other obligor, guarantor or Person for reimbursement,
contribution or otherwise, including any loss of rights that it may suffer by
reason of any rights, powers, remedies or defenses of ALAC in connection with
any laws limiting, qualifying or discharging indebtedness of or remedies against
ALAC, and the Guarantor hereby agrees not to exercise or pursue, so long as any
of the Obligations remain unsatisfied, any right to reimbursement, subrogation,
or contribution from ALAC in respect of payments hereunder.
Section 8. SIGNIFICANCE OF WAIVERS. The Guarantor represents, warrants and
agrees that each of the waivers set forth herein are made with the Guarantor's
full knowledge of its
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significance and consequences, with the understanding that events giving rise to
any defense waived may diminish, destroy or otherwise adversely affect rights
which the Guarantor otherwise may have against ALAC or any other obligor,
guarantor or Person, or against collateral, and that under the circumstances the
waivers are reasonable.
Section 9. REIMBURSEMENT. The Guarantor shall pay or reimburse the
Collateral Agent and the Surety for all costs and expenses (including reasonable
attorneys' fees and legal expenses) incurred by Collateral Agent or the Surety
in connection with the protection, defense or enforcement of this Guaranty in
any litigation or bankruptcy or insolvency proceedings.
Section 10. CUMULATIVE LIABILITY. The liability of the Guarantor under
this Guaranty is in addition to and shall be cumulative with all other
liabilities of Guarantor as guarantor, surety, endorser, accommodation
co-obligor or otherwise of any Obligations, without any limitation as to amount.
Section 11. NONPETITION COVENANT. The Guarantor shall not petition or
otherwise invoke the process of any court or government authority for the
purpose of commencing or sustaining a case against the Transferor under any
federal or state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Transferor or any substantial part of its respective property, or
ordering the winding up or liquidation of the affairs of the Transferor.
Section 12. AMENDMENTS. This Guaranty may not be waived, modified,
amended, terminated, released or otherwise changed except by a writing signed
parties hereto, with the prior written consent of the Surety.
Section 13. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 14. JURISDICTION; JURY TRIAL WAIVER; AGENT FOR SERVICE OF PROCESS.
The parties hereto hereby irrevocably submit to the jurisdiction of the United
States District Court for the Southern District of New York and any court in the
State of New York located in the City and County of New York, and any appellate
court from any thereof, in any action, suit or proceeding brought against it and
to or in connection with this Guaranty or the transactions contemplated
hereunder or for recognition or enforcement of any judgment, and the parties
hereto hereby irrevocably and unconditionally agree that all claims in respect
of any such action or proceeding may be heard or determined in such New York
state court or, to the extent permitted by law, in such federal court. The
parties hereto agree that a final judgment in any such action, suit or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. To the extent
permitted by applicable law, the parties hereto hereby waive and agree not to
assert by way of motion, as a defense or otherwise in any such suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction of
such courts, that the suit, action or proceeding is brought in an inconvenient
forum, that the
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venue of the suit, action or proceeding is improper or that the related
documents or the subject matter thereof may not be litigated in or by such
courts. The parties hereby waive trial by jury.
Section 15. COUNTERPARTS. This Guaranty may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be an original, but all such
counterparts together shall constitute but one and the same instrument.
Section 16. SEVERABILITY. Any invalidity or unenforceability of any
provision or application of this Guaranty shall not affect other lawful
provisions and application hereof, and to this end the provisions of this
Guaranty are declared to be severable.
Section 17. BENEFITS; THIRD-PARTY BENEFICIARY. This Guaranty shall be
effective as of the date hereof, without further act, condition or acceptance by
the Collateral Agent or ALAC, shall be binding upon the Guarantor and the
successors and assigns of the Guarantor and shall inure to the benefit of the
Collateral Agent, the Noteholder, ALAC, the Transferor and the Surety and its
participants, successors and assigns. The Surety and the Noteholder shall each
be an express third-party beneficiary to this Guaranty and entitled to rely on
and enforce such provisions to the same extent as if it were a party hereto.
Section 18. TERMINATION. This Guaranty shall terminate upon the payment in
full of the Obligations; provided, however, that the provisions of Section 3(c)
hereof shall survive any termination of this Guaranty.
Section 19. EFFECT. The guaranty of the Guarantor hereunder is limited to
the Obligations as expressly provided herein, and no provision hereof shall,
expressly or by implication, be construed (i) as a guaranty or assumption by the
Guarantor of any indebtedness of the Transferor under the Note, or (ii) as a
modification in any respect of the limitation on recourse with respect to such
indebtedness as provided in Section 5.8 of the Note Purchase Agreement.
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IN WITNESS WHEREOF, this Guaranty has been duly executed by the parties
hereto as of the date and year first above written.
FIRST INVESTORS FINANCIAL SERVICES, INC.,
as Guarantor
By_______________________________________
Title____________________________________
FIRST INVESTORS AUTO RECEIVABLES
CORPORATION, as Transferor
By_______________________________________
Title____________________________________
AUTO LENDERS ACCEPTANCE CORPORATION
By_______________________________________
Title____________________________________
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Collateral Agent
By_______________________________________
Title____________________________________
