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EXECUTION COPY
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PURCHASE AGREEMENT
between
AMSOUTH BANK
as
Seller
and
AMSOUTH AUTO RECEIVABLES LLC
as
Purchaser
Dated as of October 1, 2000
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS................................................................... 3
SECTION 1.1. Definitions............................................................. 3
SECTION 1.2. Other Interpretive Provisions........................................... 3
ARTICLE II PURCHASE AND SALE OF RECEIVABLES.............................................. 4
SECTION 2.1. Purchase and Sale of Receivables........................................ 4
SECTION 2.2. Receivables Purchase Price.............................................. 5
ARTICLE III REPRESENTATIONS AND WARRANTIES................................................ 5
SECTION 3.1. Representations and Warranties of Purchaser............................. 5
SECTION 3.2. Representations and Warranties of AmSouth Bank.......................... 7
SECTION 3.3. Representations and Warranties as to Each Receivable.................... 8
SECTION 3.4. Repurchase upon Breach................................................. 12
ARTICLE IV COVENANTS OF AMSOUTH BANK.................................................... 13
SECTION 4.1. Protection of Title to AmSouth Bank Assets............................. 13
SECTION 4.2. Liability of AmSouth Bank; Indemnities................................. 15
ARTICLE V MISCELLANEOUS PROVISIONS..................................................... 16
SECTION 5.1. Obligations of AmSouth Bank............................................ 16
SECTION 5.2. AmSouth Bank's Assignment of Purchased Receivables..................... 16
SECTION 5.3. Subsequent Transfer to Issuer and Indenture Trustee.................... 16
SECTION 5.4. Amendment.............................................................. 17
SECTION 5.5. Waivers................................................................ 18
SECTION 5.6. Notices................................................................ 18
SECTION 5.7. Costs and Expenses..................................................... 19
SECTION 5.8. Representations to Survive............................................. 19
SECTION 5.9. Governing Law.......................................................... 19
SECTION 5.10. Counterparts........................................................... 19
SECTION 5.11. Third Party Beneficiaries.............................................. 19
Exhibit A Location of AmSouth Bank and Purchaser
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PURCHASE AGREEMENT
This PURCHASE AGREEMENT (as from time to time amended, supplemented or
otherwise modified and in effect, this "Agreement") is made as of this 1st day
of October, 2000 by and between AMSOUTH BANK, a state banking corporation
organized under the laws of the State of Alabama ("AmSouth Bank"), and AMSOUTH
AUTO RECEIVABLES LLC, a Delaware limited liability company (the "Purchaser").
WHEREAS, in the regular course of its business, AmSouth Bank purchases
Motor Vehicle Loans secured by new and used automobiles and light trucks from
motor vehicle dealers;
WHEREAS, Purchaser desires to purchase from AmSouth Bank a portfolio of
Motor Vehicle Loans arising in connection with Motor Vehicle Loans purchased by
AmSouth Bank from Dealers; and
WHEREAS, AmSouth Bank is willing to sell such Motor Vehicle Loans to
Purchaser.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. Capitalized terms are used in this Agreement as
defined in Appendix X to the Sale and Servicing Agreement among AmSouth Auto
Trust 2000-1, as issuer, the Purchaser, as seller, and AmSouth Bank, as
servicer.
SECTION 1.2. Other Interpretive Provisions. For purposes of this
Agreement, unless the context otherwise requires: (a) accounting terms not
otherwise defined in this Agreement, and accounting terms partly defined in this
Agreement to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles; (b) terms defined in
Article 9 of the UCC and not otherwise defined in this Agreement are used as
defined in that Article; (c) the words "hereof," "herein" and "hereunder" and
words of similar import refer to this Agreement as a whole and not to any
particular provision of this Agreement; (d) references to any Article, Section,
Schedule or Exhibit are references to Articles, Sections, Schedules and Exhibits
in or to this Agreement and references to any paragraph, subsection, clause or
other subdivision within any Section or definition refer to such paragraph,
subsection, clause or other subdivision of such Section or definition; (e) the
term "including" means "including without limitation"; (f) except as otherwise
expressly provided herein, references to any law or regulation refer to that law
or regulation as amended from time to time and include
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any successor law or regulation; (g) references to any Person include that
Person's successors and assigns; and (h) headings are for purposes of reference
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
SECTION 2.1. Purchase and Sale of Receivables.
Effective as of the Closing Date and immediately prior to the transactions
pursuant to the Indenture, the Sale and Servicing Agreement and the Trust
Agreement, AmSouth Bank does hereby sell, transfer, assign, set over and
otherwise convey to Purchaser, without recourse (subject to the obligations
herein) (the "AmSouth Bank Assets"):
(i) all right, title and interest of AmSouth Bank in and to the
Receivables, and all moneys received thereon after the Cutoff Date;
(ii) all right, title and interest of AmSouth Bank in the security
interests in the Financed Vehicles granted by Obligors pursuant to the
Receivables and any other interest of AmSouth Bank in the Financed Vehicles
and any other property that shall secure the Receivables;
(iii) the interest of AmSouth Bank in any proceeds with respect to
the Receivables from claims on any Insurance Policies covering Financed
Vehicles or the Obligors or from claims under any lender's single interest
insurance policy naming AmSouth Bank as an insured;
(iv) rebates of premiums relating to Insurance Policies and rebates
of other items such as extended warranties financed under the Receivables,
in each case, to the extent the Servicer would, in accordance with its
customary practices, apply such amounts to the Principal Balance of the
related Receivable;
(v) the interest of AmSouth Bank in any proceeds from (A) any
Receivable repurchased by a Dealer, pursuant to a Dealer Agreement, as a
result of a breach of representation or warranty in the related Dealer
Agreement, (B) a default by an Obligor resulting in the repossession of the
Financed Vehicle under the applicable Motor Vehicle Loan or (C) any Dealer
Recourse or other rights relating to the Receivables under Dealer
Agreements;
(vi) all right, title and interest of AmSouth Bank in any instrument
or document relating to the Receivables; and
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(vi) the proceeds of any and all of the foregoing.
The sale, transfer, assignment, setting over and conveyance made hereunder
shall not constitute and is not intended to result in an assumption by Purchaser
of any obligation of AmSouth Bank to the Obligors, the Dealers or any other
Person in connection with the Receivables and the other assets and properties
conveyed hereunder or any agreement, document or instrument related thereto.
It is the express intention of AmSouth Bank and Purchaser that (i) the
assignment and transfer herein contemplated constitute a sale of the Receivables
and the other AmSouth Bank Assets described above, conveying good title thereto
free an clear of any liens, encumbrances, security interests or rights of other
Persons, from AmSouth Bank to Purchaser and (ii) the Receivables and the other
AmSouth Bank Assets described above not be a part of AmSouth Bank's estate in
the event of a bankruptcy or insolvency of AmSouth Bank. If, notwithstanding
the intention of AmSouth Bank and Purchaser, such conveyance is deemed to be a
pledge in connection with a financing or is otherwise deemed not to be a sale,
AmSouth Bank hereby grants, and the parties intend that AmSouth Bank shall have
granted, to Purchaser a first priority perfected security interest in all of
AmSouth Bank's right, title and interest in the items of the AmSouth Bank Assets
and all proceeds of the foregoing, and that this Agreement shall constitute a
security agreement under applicable law and Purchaser shall have all of the
rights and remedies of a secured party and creditor under the UCC as in force in
the relevant jurisdictions.
SECTION 2.2 Receivables Purchase Price. In consideration for the AmSouth
Bank Assets, Purchaser shall, on the Closing Date, pay to AmSouth Bank the
Receivables Purchase Price. The "Receivables Purchase Price" shall be
$951,262,805.84 Purchaser shall pay AmSouth Bank $943,287,521.71 in cash on the
Closing Date, with the remaining portion of the Receivables Purchase Price to be
deemed paid and returned to Purchaser and considered a contribution to capital.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties of Purchaser. Purchaser
hereby makes the following representations and warranties upon which AmSouth
Bank may rely. Such representations are made as of the execution and delivery
of this Agreement, but shall survive the sale, transfer and assignment of the
Receivables to Purchaser.
(a) Organization and Good Standing. Purchaser has been duly
organized and is validly existing as a limited liability company in good
standing under the laws of the State of Delaware, and has full power and
authority to execute and deliver this Agreement and to perform the terms
and provisions hereof and thereof.
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(b) Power and Authority. Purchaser has full power, authority and
legal right to execute, deliver, and perform this Agreement and has taken
all necessary action to authorize the execution, delivery, and performance
by it of this Agreement.
(c) No Consent Required. No approval, authorization, consent,
license or other order or action of, or filing or registration with, any
governmental authority, bureau or agency is required in connection with the
execution, delivery or performance by Purchaser of this Agreement or the
consummation of the transactions contemplated hereby.
(d) Binding Obligation. This Agreement has been duly executed and
delivered by Purchaser and this Agreement constitutes a legal, valid and
binding obligation of Purchaser, enforceable against Purchaser in
accordance with its terms, subject, as to enforceability, to applicable
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation and other similar laws affecting the enforcement of the rights
of creditors generally and to equitable limitations on the availability of
specific remedies.
(e) No Violation. The execution, delivery and performance by
Purchaser of this Agreement and the consummation of the transactions
contemplated hereby will not conflict with, result in any breach of the
terms and provisions of, constitute (with or without notice or lapse of
time) a material default under, or result in the creation or imposition of
any Lien under any of its material properties pursuant to the terms of, (i)
the limited liability company agreement of Purchaser, (ii) any material
indenture, contract, lease, mortgage, deed of trust or other instrument or
agreement to which Purchaser is a party or by which Purchaser is bound or
to which any of its properties are subject, or (iii) any law, order, rule
or regulation applicable to Purchaser of any federal or state regulatory
body, any court, administrative agency or other governmental
instrumentality having jurisdiction over Purchaser.
(f) No Proceedings. There are no proceedings or investigations
pending, or, to the knowledge of Purchaser, threatened, before any court,
regulatory body, administrative agency, or other tribunal or governmental
instrumentality having jurisdiction over Purchaser or its properties: (i)
asserting the invalidity of this Agreement or the transactions contemplated
herein, (ii) seeking to prevent the consummation of any of the transactions
by this Agreement, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by Purchaser of its
obligations under, or the validity or enforceability of, this Agreement or
the transactions contemplated herein, or (iv) that may materially and
adversely affect this Agreement or the transactions contemplated hereby.
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SECTION 3.2 Representations and Warranties of AmSouth Bank.
AmSouth Bank hereby makes the following representations and warranties upon
which Purchaser may rely. Such representations are made as of the execution and
delivery of this Agreement, but shall survive the sale, transfer and assignment
of the Receivables to Purchaser.
(a) Organization and Good Standing. AmSouth Bank has been duly
organized and is validly existing as a state banking corporation in good
standing under the laws of the State of Alabama, with the power and
authority to own its properties and to conduct its business as such
properties are presently owned and such business is presently conducted and
had at all relevant times, and has, power, authority and legal right to
acquire, own and sell the AmSouth Bank Assets pursuant to Article II.
(b) Power and Authority. AmSouth Bank has the power, authority and
legal right to execute and deliver this Agreement and to carry out its
terms and to sell and assign the AmSouth Bank Assets; and the execution,
delivery and performance of this Agreement has been duly authorized by
AmSouth Bank by all necessary corporate action.
(c) No Consent Required. No approval, authorization, consent,
license or other order or action of, or filing or registration with, any
governmental authority, bureau or agency is required in connection with the
execution, delivery or performance of this Agreement or the consummation of
the transactions contemplated hereby or thereby, other than the filing of
UCC financing statements.
(d) Valid Sale; Binding Obligation. AmSouth Bank intends this
Agreement to effect a valid sale, transfer, and assignment of the
Receivables and the other properties and rights included in the AmSouth
Bank Assets conveyed by AmSouth Bank to Purchaser hereunder, enforceable
against creditors of and purchasers from AmSouth Bank; and this Agreement
constitutes a legal, valid and binding obligation of AmSouth Bank,
enforceable against AmSouth Bank in accordance with its terms, subject, as
to enforceability, to applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation and other similar laws affecting
enforcement of the rights of creditors generally and to equitable
limitations on the availability of specific remedies.
(e) No Violation. The execution, delivery and performance by
AmSouth Bank of this Agreement and the consummation of the transactions
contemplated hereby will not conflict with, result in any material breach
of any of the terms and provisions of, constitute (with or without notice
or lapse of time) a material default under or result in the creation or
imposition of any Lien upon any of its material properties pursuant to the
terms of, (i) the articles of incorporation or bylaws of AmSouth Bank, (ii)
any material indenture, contract, lease, mortgage, deed of trust or other
instrument or agreement to which AmSouth Bank is a party or by which
AmSouth Bank is bound, or (iii) any law, order, rule or regulation
applicable to AmSouth Bank of any federal or state regulatory
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body, any court, administrative agency, or other governmental
instrumentality having jurisdiction over AmSouth Bank.
(f) No Proceedings. There are no proceedings or investigations
pending, or, to the knowledge of AmSouth Bank, threatened, before any
court, regulatory body, administrative agency, or other tribunal or
governmental instrumentality having jurisdiction over AmSouth Bank or its
properties: (i) asserting the invalidity of this Agreement or the
transactions contemplated herein, (ii) seeking to prevent the consummation
of any of the transactions by this Agreement, (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by AmSouth Bank of its obligations under, or the validity or
enforceability of, this Agreement or the transactions contemplated herein,
or (iv) that may materially and adversely affect this Agreement or the
transactions contemplated hereby.
(g) Chief Executive Office. The chief executive office of AmSouth
Bank is set forth in Exhibit A attached hereto.
(h) Official Record. This Agreement and all other documents related
hereto which AmSouth Bank is a party have been approved by AmSouth Bank's
board of directors, which approval is reflected in the minutes of such
board, and shall continuously from time to time of each such document's
execution, be maintained as an official record of AmSouth Bank.
SECTION 3.3 Representations and Warranties as to Each Receivable.
AmSouth Bank hereby makes the following representations and warranties as
to each Receivable conveyed by it to Purchaser hereunder on which Purchaser
shall rely in acquiring the Receivables. Unless otherwise indicated, such
representations and warranties shall speak as of the Closing Date, but shall
survive the sale, transfer and assignment of the Receivables to Purchaser
hereunder, the subsequent sale, transfer and assignment of the Receivables to
Issuer under the Sale and Servicing Agreement, and the pledge thereof to
Indenture Trustee pursuant to the Indenture.
(a) Characteristics of Receivables. The Receivable has been fully
and properly executed by the parties thereto and (i) has been originated by
a Dealer in the ordinary course of such Dealer's business to finance the
retail sale by a Dealer of the related Financed Vehicle and has been
purchased by AmSouth Bank or its predecessors in interest in the ordinary
course of their business, (ii) was underwritten in accordance with AmSouth
Bank's underwriting standards, (iii) is secured by a valid, subsisting,
binding and enforceable first priority security interest in favor of
AmSouth Bank in the Financed Vehicle (subject to administrative delays and
clerical errors on the part of the applicable government agency and to any
statutory or other lien arising by operation of law after the Closing Date
which is prior to such security interest), which security interest is
assignable together with such Receivable, and has been so assigned to
Purchaser, and
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subsequently assigned to Issuer pursuant to the Sale and Servicing
Agreement, and pledged to Indenture Trustee pursuant to the Indenture, (iv)
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, (v) provided, at origination,
for level monthly payments (provided that the amount of the first or last
payment may be minimally different), which fully amortize the Initial
Principal Balance over the original term, (vi) provides for interest at the
Contract Rate specified in the Schedule of Receivables, (vii) was
originated in the United States and (viii) constitutes "chattel paper" as
defined in the UCC.
(b) Individual Characteristics. The Receivables have the following
individual characteristics as of the Cutoff Date; (i) each Receivable is
secured by a Motor Vehicle; (ii) each Receivable was originated in the
United States of America, (iii) each Receivable provides for level monthly
payments which fully amortize the amount financed, except for the last
payment, which may be slightly different from the level payment; (iv) each
Receivable has a Contract Rate of no less than 8.00% and not more than
11.00%; (v) each Receivable had an original term to maturity of not more
than 72 months and not less than 18 months and each Receivable has a
remaining term to maturity, as of the Cutoff Date, of six months or more;
(vi) each Receivable had an Initial Principal Balance less than or equal to
$60,000; (vii) each Receivable has a Cutoff Date Principal Balance of
greater than or equal to $1,001; (viii) no Receivable has a scheduled
maturity date later than August 30, 2006; (ix) no Receivable was more than
29 days past due as of the Cutoff Date; (x) no Financed Vehicle was noted
in the related records of AmSouth Bank as being the subject of any pending
bankruptcy or insolvency proceeding as of the Cutoff Date; (xi) no
Receivable is subject to a force placed Physical Damage Insurance Policy on
the related Financed Vehicle; (xii) each Receivable is a Simple Interest
Receivable; and (xiii) the Dealer of the Financed Vehicle has no
participation in, or other right to receive, any proceeds of the
Receivable. The Receivables were selected using selection procedures that
were not intended by AmSouth Bank to be adverse to the Purchaser.
(c) Schedule of Receivables. The information with respect to each
Receivable set forth in the Schedule of Receivables, including (without
limitation) the account number, the Cutoff Date Principal Balance, the
maturity date and the Contract Rate, was true and correct in all material
respects as of the close of business on the Cutoff Date.
(d) Compliance with Law. The Receivable and the sale of the related
Financed Vehicle complied at the time it was originated or made, and will
comply as of the Closing Date, in all material respects with all
requirements of applicable federal, state and local laws, and regulations
thereunder, including, to the extent applicable, usury laws, the Federal
Truth in Lending Act, the Equal Credit Opportunity Act, the Fair Credit
Reporting Act, the Federal Trade Commission Act, the Magnuson-Moss Warranty
Act, the Fair Debt Collection Practices Act, Federal Reserve Board
Regulations B and Z and any other consumer credit, consumer protection,
equal opportunity and disclosure laws.
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(e) Binding Obligation. The Receivable constitutes the genuine,
legal, valid and binding payment obligation in writing of the Obligor,
enforceable in all material respects by the holder thereof in accordance
with its terms, subject to the effect of bankruptcy, insolvency,
reorganization, or other similar laws affecting the enforcement of
creditors' rights generally, and the Receivable is not subject to any right
of rescission, setoff, counterclaim or defense, including the defense of
usury.
(f) Lien in Force. The Receivable has not been satisfied,
subordinated or rescinded and AmSouth Bank has not taken any action which
would have the effect of releasing the related Financed Vehicle from the
Lien granted by the Receivable in whole or in part.
(g) No Amendment or Waiver. No material provision of the Receivable
has been amended, waived, altered or modified in any respect, except such
waivers as would be permitted under the Sale and Servicing Agreement and as
are reflected in the Receivable File, and no amendment, waiver, alteration
or modification causes such Receivable not to conform to the other
representations or warranties contained in this Section.
(h) No Liens. There are no Liens or claims, including Liens for
work, labor, materials or unpaid state or federal taxes, relating to the
Financed Vehicle securing the Receivable, that are or may be prior to or
equal to the Lien granted by the Receivable.
(i) No Default. Except for payment delinquencies continuing for a
period of less than 30 days as of the Cutoff Date, there is no default,
breach, violation or event permitting acceleration under the terms of the
Receivable exists and no continuing condition that with notice or lapse of
time, or both, would constitute a default, breach, violation or event
permitting acceleration under the terms of the Receivable has arisen.
(j) Insurance. The Receivable requires the Obligor to insure the
Financed Vehicle under a Physical Damage Insurance Policy, pay the premiums
for such insurance and keep such insurance in full force and effect. With
respect to each Receivable, AmSouth Bank, in accordance with its customary
standards, policies and procedures, shall have determined that, as of the
date of origination of each Receivable, the Obligor had obtained or agreed
to obtain a Physical Damage Insurance Policy covering the Financed Vehicle.
(k) Good Title. It is the intention of AmSouth Bank that the
transfer and assignment herein contemplated constitute a sale of the
Receivables from AmSouth Bank to Purchaser and that the beneficial interest
in and title to the Receivables not be part of AmSouth Bank's estate in the
event of the filing of a bankruptcy petition or insolvency proceeding by or
against AmSouth Bank under any bankruptcy or insolvency law. No Receivable
has been sold, transferred, assigned, or pledged by AmSouth Bank to any
Person other than Purchaser. Immediately prior to the transfer and
assignment herein
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contemplated, AmSouth Bank had good and marketable title to the Receivable
free and clear of any Lien and had full right and power to transfer and
assign the Receivable to Purchaser and immediately upon the transfer and
assignment of the Receivable to Purchaser, Purchaser shall have good and
marketable title to the Receivable, free and clear of any Lien; and
Purchaser's interest in the Receivable resulting from the transfer has been
perfected under the UCC. All filings (including UCC filings) necessary in
any jurisdiction to give Purchaser a first priority perfected ownership
interest in the Receivables, to give Issuer a first priority perfected
ownership interest in the Receivables, and to give Indenture Trustee a
first priority perfected security interest therein, shall have been
presented to Indenture Trustee for filing in the appropriate filing
offices. Upon such filing by the Indenture Trustee, the Indenture Trustee
will have a first priority perfected security interest in the Receivables.
(l) Obligations. AmSouth Bank has duly fulfilled all material
obligations on its part to be fulfilled under, or in connection with, the
Receivable.
(m) Possession. There is only one original executed Receivable, and
immediately prior to the Closing Date, AmSouth Bank will have possession of
such original executed Receivable.
(n) No Government Obligor. The Obligor on the Receivable is not the
United States of America or any state thereof or any local government, or
any agency, department, political subdivision or instrumentality of the
United States of America or any state thereof or any local government.
(o) Marking Records. By the Closing Date, AmSouth Bank shall have
caused the portions of AmSouth Bank's electronic master record of Motor
Vehicle Loans relating to the Receivables to be clearly and unambiguously
marked to show that the Receivable is owned by Purchaser in accordance with
the terms of this Agreement.
(p) No Assignment. As of the Closing Date, AmSouth Bank shall not
have taken any action to convey any right to any Person that would result
in such Person having a right to payments received under the Insurance
Policies or Dealer Agreements, or payments due under the Receivable, that
is senior to, or equal with, that of Purchaser.
(q) Lawful Assignment. The Receivable has not been originated in,
and is not subject to the laws of, any jurisdiction under which the sale,
transfer or assignment of such Receivable hereunder or pursuant to
transfers of the Notes or Certificates are unlawful, void or voidable.
AmSouth Bank has not entered into any agreement with any Obligor that
prohibits, restricts or conditions the assignment of any portion of the
Receivables.
(r) Dealer Agreements. A Dealer Agreement for each Receivable is in
effect whereby the Dealer warrants title to the Motor Vehicle and
indemnifies AmSouth Bank
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against the unenforceability of each Receivable sold thereunder, and the
rights of AmSouth Bank thereunder, with regard to the Receivable sold
hereunder, have been validly assigned to and are enforceable against the
Dealer by the Purchaser, along with any Dealer Recourse.
(s) Composition of Receivable. No Receivable has a Principal Balance
which includes capitalized interest, late charges or amounts attributable
to the payment of the premium for any Physical Damage Insurance Policy.
(t) Database File. The information included with respect to each
Receivable in the database file delivered pursuant to Section 4.9(b) of the
Sale and Servicing Agreement is accurate and complete in all material
respects.
(u) No Bankruptcies. No Obligor on any Receivable was noted in the
related Receivable File as having filed for bankruptcy in a proceeding
which remained undischarged as of the Cutoff Date.
(v) Amounts. The Original Pool Balance was $950,415,639.
(w) Aggregate Characteristics. The Receivables had the following
characteristics in the aggregate as of the Cutoff Date: (i) approximately 51.7%
of the Original Pool Balance was attributable to loans for purchases of new
Financed Vehicles, and approximately 48.3% of the Original Pool Balance was
attributable to loans for purchases of used Financed Vehicles; (ii)
approximately 29.72% of the Original Pool Balance was attributable to
Receivables the mailing addresses of the Obligors with respect to which are
located in the State of Alabama, 24.17% of the Original Pool Balance was
attributable to Receivables the mailing addresses of the Obligors with respect
to which are located in the State of Florida, 17.86% of the Original Pool
Balance was attributable to Receivables the mailing addresses of the Obligors
with respect to which are located in the State of Georgia, 7.32% of the Original
Pool Balance was attributable to Receivables the mailing addresses of the
Obligors with respect to which are located in the State of Mississippi, 6.94% of
the Original Pool Balance was attributable to Receivables the mailing addresses
of the Obligors with respect to which are located in the State of Tennessee, and
no other state accounts for more than 5% of the Original Pool Balance; (iii) the
weighted average Contract Rate of the Receivables was 9.44%; (iv) there are
73,293 Receivables being conveyed by AmSouth Bank to Purchaser; (v) the average
Cutoff Date Principal Balance of the Receivables was $12,967; (vi) the weighted
average original term and weighted average remaining term of the Receivables
were 61.4 months and 49.4 months, respectively; and (vii) 97% of the Receivables
have their next scheduled payment date in either October or November of 2000.
SECTION 3.4 Repurchase upon Breach. AmSouth Bank or Purchaser, as the
case may be, shall inform the other party to this Agreement promptly, in
writing, upon the discovery of any breach or failure to be true of the
representations or warranties made by AmSouth Bank in Section 3.3; provided that
the failure to give such notice shall not affect any obligation of
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AmSouth Bank. If the breach or failure shall not have been cured by the last day
of the Collection Period which includes the 60th day (or if AmSouth Bank elects,
the 30th day) after the date on which AmSouth Bank becomes aware of, or receives
written notice from Purchaser of, such breach or failure, and such breach or
failure materially and adversely affects the interests of Issuer and the Holders
in any Receivable, AmSouth Bank shall repurchase each such Receivable from
Purchaser, or its successors or assigns, as of such last day of such Collection
Period at a purchase price equal to the Purchase Amount for such Receivable as
of such last day of such Collection Period, which amount shall be deposited in
the Collection Account pursuant to the provisions of the Sale and Servicing
Agreement. Notwithstanding the foregoing, any such breach or failure with
respect to the representations and warranties contained in Section 3.3 will not
be deemed to have such a material and adverse effect with respect to a
Receivable if the facts resulting in such breach or failure do not affect the
ability of Purchaser, or its successors or assigns, to receive and retain
payment in full on such Receivable. In consideration of the purchase of a
Receivable hereunder, AmSouth Bank shall (unless otherwise directed by
Purchaser, or its successors or assigns, in writing) deposit the Purchase Amount
of such Receivable, no later than the close of business on the next Deposit
Date, in the manner specified in Section 5.4 of the Sale and Servicing
Agreement. The sole remedy (except as provided in Section 4.2) of Purchaser and
its successor or assigns with respect to a breach or failure to be true of the
warranties made by AmSouth Bank pursuant to Section 3.3, shall be to require
AmSouth Bank to repurchase Receivables pursuant to this Section.
ARTICLE IV
COVENANTS OF AMSOUTH BANK
AmSouth Bank covenants and agrees with Purchaser as follows:
SECTION 4.1 Protection of Title to AmSouth Bank Assets. (a) AmSouth
Bank shall execute and file such financing statements and cause to be executed
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
Purchaser, Owner Trustee and Indenture Trustee in the Receivables and the
proceeds thereof. AmSouth Bank shall deliver (or cause to be delivered) to
Purchaser file-stamped copies of, or filing receipts for, any document filed as
provided above, as soon as available following such filing.
(b) AmSouth Bank shall not change its name, identity or corporate structure
in any manner that would, could or might make any financing statement or
continuation statement filed in accordance with paragraph (a) above seriously
misleading within the meaning of (S) 9-402(7) of the UCC, unless it shall have
given Purchaser, Owner Trustee and Indenture Trustee at least 30 days' prior
written notice thereof and shall have promptly filed appropriate amendments to
all previously filed financing statements or continuation statements.
(c) AmSouth Bank shall give Purchaser, Owner Trustee and Indenture Trustee
at least 60 days' prior written notice of any relocation of its principal
executive office if, as a result
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of such relocation, the applicable provisions of the UCC would require the
filing of any amendment of any previously filed financing or continuation
statement or of any new financing statement and shall promptly file any such
amendment or new financing statement.
(d) AmSouth Bank shall maintain its computer systems relating to
installment loan recordkeeping so that, from and after the time of sale under
this Agreement of its Receivables, AmSouth Bank's master computer records
(including any backup archives) that refer to a Receivable shall indicate
clearly the interest of Purchaser, Issuer and Indenture Trustee in such
Receivable and that such Receivable has been sold to Purchaser and by Purchaser
to Issuer and is owned by Issuer and has been pledged to Indenture Trustee
pursuant to the Indenture. Indication of Purchaser's, Issuer's and Indenture
Trustee's interest in a Receivable shall be deleted from or modified on AmSouth
Bank's computer systems when, and only when, the related Receivable shall have
been paid in full or repurchased by AmSouth Bank or purchased by Servicer.
(e) If at any time AmSouth Bank shall propose to sell, grant a security
interest in or otherwise transfer any interest in automotive receivables to any
prospective purchaser, lender or other transferee, AmSouth Bank shall give to
such prospective purchaser, lender or other transferee computer tapes, records
or printouts (including any restored from backup archives) that, if they shall
refer in any manner whatsoever to any Receivable, shall indicate clearly that
such Receivable has been sold to Purchaser and then sold by Purchaser to Issuer
and pledged to Indenture Trustee.
(f) AmSouth Bank shall, upon receipt by AmSouth Bank of reasonable prior
notice, permit Purchaser, Owner Trustee and Indenture Trustee, and their
respective agents at any time during normal business hours to inspect, audit and
make copies of and abstracts from AmSouth Bank's records regarding any
Receivable.
(g) Upon request at any time, Purchaser, Owner Trustee or Indenture Trustee
shall have reasonable grounds to believe that such request is necessary in
connection with the performance of its duties under this Agreement, AmSouth Bank
shall furnish to Purchaser, Owner Trustee and Indenture Trustee within 30
Business Days, a list of all Receivables (by contract number and name of
Obligor) conveyed to Purchaser hereunder and then owned by Issuer and pledged to
Indenture Trustee, together with a reconciliation of such list to the Schedule
of Receivables and to each of Servicer's Reports furnished before such request
indicating removal of Receivables from Issuer.
(h) AmSouth Bank shall deliver or cause to be delivered to Purchaser, Owner
Trustee and Indenture Trustee:
(1) promptly after the execution and delivery of this Agreement and
of each amendment thereto, an Opinion of Counsel either (A) stating that,
in the opinion of such counsel, all financing statements and continuation
statements have been executed and filed that are necessary fully to
preserve and protect the interest of Purchaser in the Receivables, and
reciting the details of such filings or referring to prior Opinions of
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Counsel in which such details are given, or (B) stating that, in the
opinion of such counsel, no such action shall be necessary to preserve and
protect such interest; and
(2) within 120 days after the beginning of each calendar year
beginning with the first calendar year beginning more than four months
after the Cutoff Date, an Opinion of Counsel, dated as of a date during
such 120-day period, either (A) stating that, in the opinion of such
counsel, all financing statements and continuation statements have been
executed and filed that are necessary fully to preserve and protect the
interest of Purchaser in the Receivables, and reciting the details of such
filings or referring to prior Opinions of Counsel in which such details are
given, or (B) stating that, in the opinion of such counsel, no such action
shall be necessary to preserve and protect such interest.
Each Opinion of Counsel referred to in clause (1) or (2) above shall
specify any action necessary (as of the date of such opinion) to be taken in the
following year to preserve and protect such interest.
SECTION 4.2 Liability of AmSouth Bank; Indemnities. AmSouth Bank shall be
liable in accordance herewith only to the extent of the obligations specifically
undertaken by AmSouth Bank under this Agreement.
(a) AmSouth Bank shall indemnify, defend and hold harmless
Purchaser, Issuer, Owner Trustee (individually and in its capacity as such)
and Indenture Trustee (individually and in its capacity as such) and their
respective officers, directors, employees and agents from and against any
taxes that may at any time be asserted against any such Person with respect
to, and on the date of, the sale of the Receivables to Purchaser, including
any sales, gross receipts, general corporation, tangible personal property,
privilege or license taxes (but, not including any taxes asserted with
respect to Federal or other income taxes arising out of this Agreement and
the other Basic Documents) and costs and expenses in defending against the
same.
(b) AmSouth Bank shall indemnify, defend and hold harmless
Purchaser, Issuer, Owner Trustee (individually and in its capacity as
such), Indenture Trustee (individually and in its capacity as such), the
Certificateholders, the Noteholders and the officers, directors, employees
and agents of Purchaser, Issuer, Owner Trustee and Indenture Trustee from
and against any and all costs, expenses, losses, claims, damages and
liabilities to the extent arising out of, or imposed upon such Person
through or as a result of (i) AmSouth Bank's willful misfeasance, bad faith
or gross negligence in the performance of its duties under this Agreement
or any other Basic Document, (ii) the failure of any Receivable conveyed by
it to Purchaser hereunder, or the sale of the related Financed Vehicle, to
comply with all requirements of applicable law, (iii) any breach of any of
AmSouth Bank's representations, warranties or covenants contained herein or
in any other Basic Document provided, however, with respect to a breach of
AmSouth Bank's representations and warranties as set forth in Section 3.3,
any indemnification amounts owed pursuant to this Section 4.2 with respect
of a Receivable shall give effect
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to and not be duplicative of the Purchase Amounts paid by AmSouth Bank
pursuant to Section 3.4 hereof, and (iv) the use, ownership or operation by
AmSouth Bank or any of its Affiliates of a Financed Vehicle prior to the
Cutoff Date.
Indemnification under this Section shall survive the termination of this
Agreement or any other Basic Document and the resignation or removal of the
Owner Trustee or Indenture Trustee and shall include reasonable fees and
expenses of counsel and other expenses of litigation. If any suit, action,
proceeding (including any governmental or regulatory investigation), claim or
demand shall be brought or asserted against any Person in respect of which
indemnity may be sought pursuant to this Section, such Person (the "Indemnified
Person") shall promptly notify AmSouth Bank in writing, and AmSouth Bank, upon
request of the Indemnified Person, shall retain counsel reasonably satisfactory
to the Indemnified Person to represent the Indemnified Person and any others
AmSouth Bank designates in such proceeding and shall pay the reasonable fees and
expenses of such counsel related to such proceeding. AmSouth Bank shall not be
liable for any settlement of any claim or proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, AmSouth Bank agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. AmSouth Bank shall not, without the prior written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject matter of such
proceeding. If AmSouth Bank shall have made any indemnity payments pursuant to
this Section 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 AmSouth Bank, without interest.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1 Obligations of AmSouth Bank. The obligations of AmSouth Bank
under this Agreement shall not be affected by reason of any invalidity,
illegality or irregularity of any Receivable.
SECTION 5.2 AmSouth Bank's Assignment of Purchased Receivables. With
respect to all Receivables repurchased by AmSouth Bank pursuant to this
Agreement, Purchaser shall assign, without recourse, representation or warranty,
to AmSouth Bank all Purchaser's right, title and interest in and to such
Receivables, and all security and documents relating thereto.
SECTION 5.3 Subsequent Transfer to Issuer and Indenture Trustee. AmSouth
Bank acknowledges that:
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(a) Purchaser will, pursuant to the Sale and Servicing Agreement,
sell the Receivables to Issuer and assign its rights under this Agreement
to the Owner Trustee for the benefit of the Noteholders and the
Certificateholders, and that the representations and warranties contained
in this Agreement and the rights of Purchaser under Section 3.4 hereof are
intended to benefit Issuer, the Owner Trustee, the Noteholders and the
Certificateholders. AmSouth Bank hereby consents to such sale and
assignment.
(b) Issuer will, pursuant to the Indenture, pledge the Receivables
and its rights under this Agreement to the Indenture Trustee for the
benefit of the Noteholders, and that the representations and warranties
contained in this Agreement and the rights of Purchaser under this
Agreement, including under Section 3.4 are intended to benefit the
Indenture Trustee and the Noteholders. AmSouth Bank hereby consents to
such pledge.
SECTION 5.4 Amendment. (a) This Agreement may be amended by AmSouth
Bank and the Purchaser, with the consent of the Owner Trustee and Indenture
Trustee (which consent may not be unreasonably withheld), but without the
consent of any of the Noteholders or the Certificateholders:
(i) to cure any ambiguity or defect, to correct or supplement any
provisions in this Agreement or for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions in this
Agreement; provided that such action shall not, as evidenced by an Opinion
of Counsel delivered to Purchaser, Owner Trustee and Indenture Trustee,
adversely affect in any material respect the interests of any Noteholder or
Certificateholder;
(ii) (A) to add, modify or eliminate such provisions as may be
necessary or advisable in order to enable all or a portion of Issuer to
qualify as, and to permit an election to be made to cause all or a portion
of Issuer to be treated as, a "financial asset securitization investment
trust" under the Code, and (B) in connection with any such election, to
modify or eliminate existing provisions set forth in this Agreement
relating to the intended federal income tax treatment of the Notes or
Certificates and Issuer in the absence of the election; it being a
condition to any such amendment that the Rating Agency Condition shall have
been met; and
(iii) to add, modify or eliminate such provisions as may be
necessary or advisable in order to enable (a) the transfer to Issuer of all
or any portion of the Receivables to be recognized as a sale under GAAP by
Purchaser to Issuer, (b) Issuer to avoid becoming a member of Purchaser's
consolidated group under GAAP or (c) AmSouth Bank or Purchaser, or any of
their Affiliates to otherwise comply with or obtain more favorable
treatment under any law or regulation or any accounting rule or principle;
it being a condition to any such amendment that the Rating Agency condition
shall have been met.
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(b) This Agreement may also be amended from time to time by AmSouth Bank
and Purchaser, with the consent of the Servicer, Owner Trustee and Indenture
Trustee, the consent of the Holders of Notes evidencing not less than a majority
of the Outstanding Amount of the Notes and the consent of the Holders of
Certificates evidencing not less than a majority of the Certificate Percentage
Interests for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Agreement; provided that no such
amendment shall (i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on Receivables or
distributions that shall be required to be made for the benefit of the
Noteholders or the Certificateholders or (ii) reduce the aforesaid percentage of
the Outstanding Amount of the Notes and the Certificate Percentage Interests,
the Holders of which are required to consent to any such amendment, without the
consent of the Holders of all the outstanding Notes and the Holders of all the
outstanding Certificates of each class affected thereby.
(c) Prior to the execution of any such amendment or consent, Purchaser
shall furnish written notification of the substance of such amendment or consent
to each Rating Agency, Owner Trustee, and Indenture Trustee. Promptly after the
execution of any such amendment or consent, Purchaser shall furnish written
notification the substance of such amendment or consent to each Noteholder,
Certificateholder, Owner Trustee and Indenture Trustee.
(d) It shall not be necessary for the consent of Certificateholders or
Noteholders pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof.
(e) Prior to the execution of any amendment to this Agreement, Owner
Trustee and Indenture Trustee shall be entitled to receive and conclusively rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and that all conditions precedent to
the execution and delivery of such amendment have been satisfied and the Opinion
of Counsel referred to in Section 4.1(h)(1) has been delivered. Owner Trustee
and Indenture Trustee may, but shall not be obligated to, enter into any such
amendment which affects Owner Trustee's or Indenture Trustee's, as applicable,
own rights, duties or immunities under this Agreement or otherwise.
SECTION 5.5 Waivers. No failure or delay on the part of Purchaser in
exercising any power, right or remedy under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power,
right or remedy preclude any other or further exercise thereof or the exercise
of any other power, right or remedy.
SECTION 5.6 Notices. All demands, notices and communications pursuant to
this Agreement to either party shall be in writing, personally delivered, or
sent by telecopier, overnight mail or mailed by certified mail, return receipt
requested, and shall be deemed to have been duly given upon receipt at the
address set forth in Exhibit A attached hereto or at such other address as may
be designated by it by notice to the other party.
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SECTION 5.7 Costs and Expenses. AmSouth Bank will pay all expenses
incident to the performance of its obligations under this Agreement and all
expenses in connection with the perfection as against third parties of
Purchaser's right, title and interest in and to the Receivables and Purchaser
agrees to pay expenses incident to the performance of its obligations under this
Agreement.
SECTION 5.8 Representations to Survive. The respective agreements,
representations, warranties and other statements by AmSouth Bank and Purchaser
set forth in or made pursuant to this Agreement shall remain in full force and
effect and will survive the Closing Date and any sale, transfer or assignment of
the Receivables by Purchaser.
SECTION 5.9 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 HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 5.1 Counterparts. This Agreement may be executed in two or more
counterparts and by different parties on separate counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
SECTION 5.1 Third Party Beneficiaries. Each of the Issuer, Owner Trustee
(individually and in its capacity as such), Indenture Trustee (individually and
in its capacity as such) and other Persons referred to in Section 4.2 is an
intended third party beneficiary of the indemnities of AmSouth Bank set forth in
Section 4.2 and the other provisions of this Agreement in favor of such Persons.
It is acknowledged and agreed that such indemnities and other provisions may be
enforced by or on behalf of such Persons against AmSouth Bank to the same extent
as if it were a party hereto.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereby have caused this Purchase Agreement to
be executed by their respective officers thereunto duly authorized as of the
date and year first above written.
AMSOUTH BANK, as Seller
By: /s/ R. Mark Graf
--------------------------------------------
Name: R. Mark Graf
Title: Senior Vice President
AMSOUTH AUTO RECEIVABLES LLC, as Purchaser
By: /s/ R. Mark Graf
--------------------------------------------
Name: R. Mark Graf
Title: President
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Exhibit A
Location of AmSouth Bank and Purchaser
AMSOUTH BANK
Address for Notice:
1900 Fifth Avenue North
AmSouth Sonat Tower
Birmingham, Alabama 35203
AMSOUTH AUTO RECEIVABLES LLC
Address for Notice:
1900 Fifth Avenue North
AmSouth Sonat Tower
Birmingham, Alabama 35203
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