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Exhibit 1.1
AMSOUTH AUTO TRUST 2000-1
$230,000,000 6.745% CLASS A-1 ASSET BACKED NOTES
$240,000,000 6.700% CLASS A-2 ASSET BACKED NOTES
$315,000,000 6.670% CLASS A-3 ASSET BACKED NOTES
$103,640,000 6.760% CLASS A-4 ASSET BACKED NOTES
$28,510,000 7.080% CLASS B ASSET BACKED NOTES
$14,260,000 7.440% CLASS C ASSET BACKED NOTES
AmSouth Auto Receivables LLC
(SELLER)
UNDERWRITING AGREEMENT
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October 12, 2000
Goldman, Sachs & Co., as Representative
of the Several Underwriters (the
"Representative")
85 Broad Street
New York, NY 10004
Ladies and Gentlemen:
1. Introductory. AmSouth Auto Receivables LLC (the "Seller") has
previously filed a registration statement with the Securities and Exchange
Commission relating to the issuance and sale from time to time of up to
$3,000,000,000 of asset backed notes and/or asset backed certificates. The
Seller proposes to cause AMSOUTH AUTO TRUST 2000-1 (the "Trust") to issue and
sell to the underwriters listed on Schedule II hereto (the "Underwriters")
$230,000,000 principal amount of its 6.745% Class A-1 Asset Backed Notes (the
"Class A-1 Notes"), $240,000,000 principal amount of its 6.700% Class A-2 Asset
Backed Notes (the "Class A-2 Notes"), $315,000,000 principal amount of its
6.670% Class A-3 Asset Backed Notes (the "Class A-3 Notes"), $103,640,000
principal amount of its 6.760% Class A-4 Asset Backed Notes (the "Class A-4
Notes"), $28,510,000 principal amount of its 7.080% Class B Asset Backed Notes
(the "Class B Notes") and $14,260,000 principal amount of its 7.440% Class C
Asset Backed Notes (the "Class C Notes" and together with the Class A-1 Notes,
Class A-2 Notes, Class A-3 Notes, Class A-4 Notes and Class B Notes, the
"Notes"). The Trust will also issue Certificates (the "Certificates" and
together with the Notes, the "Securities") which will be
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retained by the Seller. The assets of the Trust will include, among other
things, a pool of prime, motor vehicle retail installment sale contracts (the
"Receivables") secured by new and used automobiles and light trucks financed
thereby (the "Financed Vehicles"), and certain monies received thereunder after
September 30, 2000 (the "Cutoff Date"), and the other property and the proceeds
thereof to be conveyed to the Trust pursuant to the Sale and Servicing Agreement
to be dated as of October 1, 2000 (as amended and supplemented from time to
time, the "Sale and Servicing Agreement") among AmSouth Auto Trust 2000-1 (the
"Trust"), the Seller and AmSouth Bank ("AmSouth"), as servicer (the "Servicer").
Pursuant to the Sale and Servicing Agreement, the Seller will sell the
Receivables to the Trust and the Servicer will service the Receivables on behalf
of the Trust. In addition, pursuant to the Administration Agreement to be dated
as of October 1, 2000 (as amended and supplemented from time to time, the
"Administration Agreement") among the Trust, AmSouth and the Trustee, the
Servicer will agree to perform certain administrative tasks on behalf of the
Trust imposed on the Trust under the Indenture. The Notes will be issued
pursuant to the Indenture to be dated as of October 1, 2000 (as amended and
supplemented from time to time, the "Indenture"), between the Trust and The Bank
of New York Trust Company of Florida, National Association (the "Trustee"). The
Seller will form the Trust pursuant to an Amended and Restated Trust Agreement
(as amended and supplemented from time to time, the "Trust Agreement") to be
dated as of October 1, 2000 between the Seller and The Chase Manhattan Bank, as
owner trustee (the "Owner Trustee"). The Certificates, each representing a
fractional undivided interest in the Trust, will be issued pursuant to the Trust
Agreement.
The Receivables were originated or acquired by AmSouth. AmSouth will sell
the Receivables to the Seller pursuant to the terms of the Purchase Agreement
(as amended and supplemented from time to time, the "Loan Purchase Agreement")
dated as of October 1, 2000 between the Seller and AmSouth.
Capitalized terms used and not otherwise defined herein shall have the
meanings given them in the preliminary prospectus or, if not defined therein, as
defined in the Sale and Servicing Agreement. As used herein, the term "Basic
Documents" refers to the Sale and Servicing Agreement, Administration Agreement,
Indenture, Trust Agreement, Loan Purchase Agreement, the letter agreement in the
form of Exhibit A hereto (as amended and supplemented from time to time, the
"Letter Agreement") and Note Depository Agreement.
2. Representations and Warranties of the Seller. The Seller represents
and warrants to and agrees with the Underwriters that:
(a) A registration statement on Form S-3 (No. 333-38676), including a form
of prospectus and such amendments thereto as may have been required to the date
hereof, relating to the Notes has been filed with the Securities and Exchange
Commission (the "Commission") and has become effective. Such registration
statement, as amended as of the date of the Agreement is hereinafter referred to
as the "Registration Statement," and the prospectus included in such
Registration Statement, as supplemented to reflect the terms of the Notes as
first filed with the Commission after the date of this Agreement pursuant to and
in accordance with Rule 424(b) ("Rule 424(b)") under the Securities Act of 1933,
as amended (the "Act"), including
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all material incorporated by reference therein, is hereinafter referred to as
the "Prospectus;" a "preliminary prospectus" means any form of prospectus,
including any prospectus supplement, relating to the Notes used prior to date of
this Agreement that is subject to completion; the "Base Prospectus" means the
base prospectus dated October 9, 2000 included in the Prospectus; the
"Prospectus Supplement" means the prospectus supplement dated the date hereof
included in the Prospectus.
(b) On the effective date of the Registration Statement, such registration
statement conformed in all respects to the requirements of the Act and the rules
and regulations of the Commission promulgated under the Act (the "Rules and
Regulations") and did not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and on the date of this Agreement
the Registration Statement and the preliminary prospectus conform, and at the
time of the filing of the Prospectus in accordance with Rule 424(b), the
Registration Statement and the Prospectus will conform in all respects to the
requirements of the Act and the Rules and Regulations, and neither of such
documents includes or will include any untrue statement of a material fact or
omits or will omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. The preceding sentence
does not apply to statements in or omissions from such documents based upon
written information furnished to the Seller by the Representative specifically
for use therein, it being understood that the only such information consists of
the Underwriters' Information (as defined in Section 7(f)).
(c) The Notes are "asset backed securities" within the meaning of, and
satisfy the requirements for use of, Form S-3 under the Act.
(d) The documents incorporated by reference in the Registration Statement
and Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations of the Commission thereunder.
(e) Each of the Seller and AmSouth is a limited liability company or
Alabama state bank, as applicable, duly organized, validly existing and in good
standing under the laws of its respective state of incorporation or formation,
as applicable, is duly qualified to transact business in each jurisdiction in
which it is required to be so qualified and has all necessary licenses, permits
and consents to conduct its business as presently conducted and as described in
the Prospectus and to perform its obligations under the Basic Documents.
(f) This Agreement and the Letter Agreement has been duly authorized,
executed and delivered by the Seller and AmSouth, as applicable. Each of the
Basic Documents to which it is a party (other than the Letter Agreement) has
been duly authorized and, when executed and delivered by the Seller and AmSouth,
will constitute a valid and binding agreement of each of the Seller and AmSouth,
enforceable against the Seller and AmSouth in accordance with its terms, subject
as to the enforcement of remedies (x) to applicable bankruptcy, insolvency,
reorganization, moratorium, and other similar laws affecting creditors' rights
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generally and (y) to general principles of equity (regardless of and whether the
enforcement of such remedies is considered in a proceeding in equity or at law).
(g) Neither the Seller nor AmSouth is in breach or violation of any credit
or security agreement or other agreement or instrument to which it is a party or
by which it or its properties may be bound, or in violation of any applicable
law, statute, regulation or ordinance or any governmental body having
jurisdiction over it, which breach or violation would have a material and
adverse effect on its ability to perform its obligations under this Agreement or
any of the Basic Documents, in each case, to which it is a party.
(h) Other than as contemplated by this Agreement or as disclosed in the
Prospectus, there is no broker, finder or other party that is entitled to
receive from the Seller, AmSouth or any affiliate thereof or the Underwriters,
any brokerage or finder's fee or other fee or commission as a result of any of
the transactions contemplated by this Agreement.
(i) Neither AmSouth nor the Seller has entered into, nor will it enter
into, any contractual arrangement with respect to the distribution of the Notes,
except for this Agreement.
(j) The Trust is not an "investment company" and is not required to be
registered as an "investment company," as such term is defined in the Investment
Company Act of 1940, as amended (the "Investment Company Act").
(k) As of the Closing Date (as defined below), the representations and
warranties of the Seller and AmSouth, in each of its capacities under each of
the Basic Documents, to which it is a party will be true and correct in all
material respects as of the date of such representation or warranty was given
and each such representation and warranty is so incorporated herein by this
reference.
(l) The Seller has filed the preliminary prospectus supplement relating to
the Notes pursuant to and in accordance with Rule 424(b).
(m) The Certificates, when duly and validly executed by the Owner Trustee,
authenticated and delivered in accordance with the Trust Agreement, and
delivered to and paid for pursuant hereto will be validly issued and outstanding
and entitled to the benefits of the Trust Agreement.
(n) The Trust's assignment of the Collateral to the Trustee pursuant to
the Indenture will vest in the Trustee, for the benefit of the Noteholders, a
first priority perfected security interest therein, subject to no other
outstanding Lien.
(o) The Notes, when duly and validly executed by the Trustee,
authenticated and delivered in accordance with the Indenture, and delivered and
paid for pursuant hereto will be enforceable in accordance with their terms,
subject as to enforceability to the effects of applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium and similar laws
now or hereafter in effect relating to creditors' rights generally and subject
to general
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principles of equity (whether in a proceeding at law or in equity).
(p) Neither the execution, delivery or performance of any of the Basic
Documents by the Seller, or AmSouth, nor the issuance, sale and delivery of the
Notes or Certificates, nor the fulfillment of the terms of the Notes or
Certificates, will conflict with, or result in a breach, violation or
acceleration of, or constitute a default under, any term or provision of the
organizational documents of the Seller, or AmSouth, any material indenture or
other material agreement or instrument to which the Seller, or AmSouth is a
party or by which either of them or their properties is bound or result in a
violation of or contravene the terms of any statute, order or regulation
applicable to the Seller, or AmSouth of any court, regulatory body,
administrative agency, governmental body or arbitrator having jurisdiction over
the Seller, or AmSouth, or will result in the creation of any lien upon any
material property or assets of the Seller, or AmSouth (other than pursuant to
the Basic Documents).
(q) There are no legal or governmental proceedings pending to which the
Seller or AmSouth is a party or of which any of its properties is the subject,
which if determined adversely to the Seller or AmSouth would individually or in
the aggregate have a material adverse effect on the financial position,
shareholders' equity or results of operations of either of them; and to the best
of the Seller's or AmSouth's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or others.
(r) No consent, license, approval, authorization or order of or
declaration or filing with any governmental authority is required for the
issuance of the Notes and Certificates or sale of the Notes or the consummation
of the other transactions contemplated by this Agreement or the Basic Documents,
except such as have been duly made or obtained.
(s) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
adverse change, or any development which could reasonably be expected to result
in a material adverse change, in or affecting the financial position,
shareholders' equity or results of operations of the Seller or AmSouth, or the
Seller's or AmSouth's ability to perform its obligations under this Agreement or
any of the Basic Documents to which it is a party.
(t) Any taxes, fees and other governmental charges owed by AmSouth, the
Seller, the Trust or the Servicer due on or prior to the Closing Date
(including, without limitation, sales taxes) in connection with the execution,
delivery and issuance of this Agreement, the Basic Documents and the Securities
have been or will have been paid at or prior to the Closing Date.
(u) The Receivables transferred by AmSouth to the Seller are chattel paper
as defined in the Uniform Commercial Code as in effect in the State of Alabama.
The Receivables transferred by the Seller to the Trust are chattel paper as
defined in the Uniform Commercial Code as in effect in the State of Alabama.
(v) Under generally accepted accounting principles, (i) AmSouth will
report
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its transfer of the Receivables transferred by it to the Seller pursuant to the
Loan Purchase Agreement as a sale of the Receivables for financial accounting
purposes and (ii) the Seller will report its transfer of the Receivables to the
Trustee pursuant to the Sale and Servicing Agreement as a sale of the
Receivables for financial accounting purposes.
(w) Immediately prior to the transfer thereof to the Seller pursuant to
the Loan Purchase Agreement, AmSouth is the sole owner of all right, title and
interest in, and has good and marketable title to the Receivables and the other
property to be transferred to the Seller. AmSouth, pursuant to the Loan Purchase
Agreement, is transferring to the Seller ownership of the Receivables, the
security interest in the Financed Vehicles securing the Receivables and the
proceeds of each of the foregoing, and, immediately prior to the transfer
thereof to the Trust, the Seller will be the sole owner of all right, title and
interest in, and will have good and marketable title to, the Receivables and the
other property to be transferred by it to the Trust. The assignment of the
Receivables, all documents and instruments relating thereto and all proceeds
thereof to the Trust, pursuant to the Loan Purchase Agreement and the Sale and
Servicing Agreement, vests in the Trust all interests which are purported to be
conveyed thereby, free and clear of any liens, security interests or
encumbrances.
(x) Immediately prior to the transfer of the Receivables to the Seller,
the Seller's interest in the Receivables and the proceeds thereof shall be
perfected upon the filing of UCC-1 financing statements (the "Financing
Statements") in the offices specified in Schedule I and there shall be no
unreleased statements affecting the Receivables filed in such offices other than
the Financing Statements. If a court concludes that the transfer of the
Receivables from AmSouth to the Seller is a sale, the interest of the Seller in
the Receivables and the proceeds thereof will be perfected upon the filing of
the Financing Statements in the office of the Secretary of State of the State of
Alabama. If a court concludes that such transfer is not a sale, the Loan
Purchase Agreement and the transactions contemplated thereby constitute a grant
by AmSouth to the Seller of a valid security interest in the Receivables and the
proceeds thereof, which security interest will be perfected upon the filing of
the Financing Statements in the office of the Secretary of State of the State of
Alabama. No filing or other action, other than the filing of the Financing
Statements in the office of the Secretary of State of the State of Alabama
referred to above, is necessary to perfect and maintain the interest or the
security interest of the Seller in the Receivables and the proceeds thereof
against third parties.
(y) Immediately prior to the transfer of the Receivables to the Trust, the
Trust's interest in the Receivables and the proceeds thereof shall be perfected
upon the filing of the Financing Statements and there shall be no unreleased
statements affecting the Receivables filed in such offices other than the
Financing Statements. If a court concludes that the transfer of the Receivables
from the Seller to the Trust is a sale, the interest of the Trust in the
Receivables and the proceeds thereof will be perfected upon the filing of the
Financing Statements in the office of the Secretary of State of the State of
Alabama. If a court concludes that such transfer is not a sale, the Sale and
Servicing Agreement and the transactions contemplated thereby constitute a grant
by the Seller to the Trust of a valid security interest in the Receivables and
the proceeds thereof, which security interest will be perfected upon the filing
of the Financing Statements in the office of the Secretary of State of the State
of Alabama. No filing or other
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action, other than the filing of the Financing Statements in the office of the
Secretary of State of the State of Alabama referred to above and any related
continuation statements, is necessary to perfect and maintain the interest or
the security interest of the Trust in the Receivables and the proceeds thereof
against third parties.
(z) The Trust Agreement need not be qualified under the Trust Indenture
Act of 1939, as amended.
(aa) The Indenture has been qualified under the Trust Indenture Act of
1939, as amended.
3. Purchase, Sale and Delivery of the Notes. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Seller agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Seller, the principal amount of each class of Notes set forth opposite
the name of such Underwriter on Schedule II hereto at a purchase price equal to
"Price %" as specified on Schedule III hereto, plus accrued interest from
October 19, 2000.
The Seller will deliver the Notes to the Underwriters, against payment of
the purchase price to or upon the order of the Seller by wire transfer or check
in Federal (same day) Funds, at the office of Mayer, Brown & Platt, 190 South
LaSalle Street, Chicago, Illinois 60603, at 10:00 a.m., New York time on October
19, 2000, or at such other time not later than seven full business days
thereafter as the Underwriters and the Seller agree in writing, such time being
herein referred to as the "Closing Date." The Notes to be so delivered will be
initially represented by one or more Notes registered in the name of Cede & Co.,
the nominee of The Depository Trust Company ("DTC"). The interests of beneficial
owners of the Notes will be represented by book entries on the records of DTC
and participating members thereof. Definitive Notes will be available only under
the limited circumstances specified in the Basic Documents.
4. Offering by Underwriter. It is understood that, after the Registration
Statement becomes effective, the Underwriters propose to offer the Notes for
sale to the public (which may include selected dealers), on the terms set forth
in the Prospectus.
5. Covenants of the Seller. The Seller covenants and agrees with the
Underwriters that:
(a) The Seller will file the Prospectus, properly completed, with the
Commission pursuant to and in accordance with subparagraph (2) (or, if
applicable and if consented to by the Representative, subparagraph (5)) of Rule
424(b) no later than the second business day following the date it is first
used. The Seller will advise the Representative promptly of any such filing
pursuant to Rule 424(b).
(b) The Seller will advise the Representative promptly of any proposal to
amend or supplement the Registration Statement or the Prospectus and will not
effect such
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amendment or supplementation without the consent of the Representative, which
consent shall not be unreasonably withheld or delayed; and the Seller will
advise the Representative promptly of any amendment or supplementation of the
Registration Statement or the Prospectus and of the institution by the
Commission of any stop order proceedings in respect of the Registration
Statement and will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Notes is required to
be delivered by an Underwriter or dealer either (i) any event occurs as a result
of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made not misleading, or (ii) for any other reason it shall be
necessary to amend or supplement the Prospectus to comply with the Act, the
Seller promptly will notify the Representative of such event and promptly will
prepare, at their own expense, an amendment or supplement which will correct
such statement or omission. Neither the Representative's consent to, nor the
Underwriters' distribution of any amendment or supplement to the Prospectus
shall constitute a waiver of any of the conditions set forth in Section 6
hereof.
(d) The Seller will, so long as delivery of a prospectus by an underwriter
or dealer is required by the Act, furnish to the Underwriters copies of any
preliminary prospectus, the Prospectus, the Registration Statement and all
amendments and supplements to such documents, in each case as soon as available
and in such quantities as the Representative requests.
(e) The Seller will take all actions which are necessary to arrange for
the qualification of the Notes for offering and sale under the laws of such
jurisdictions as the Representative designates and will continue such
qualifications in effect so long as required under such laws for the
distribution of the Notes; provided, however, that in no event shall the Seller
be obligated to qualify as a foreign corporation or to execute a general or
unlimited consent or take any action that would subject it to service of process
in any such jurisdiction.
(f) The Seller shall, at all times upon request of the Representative or
its advisors, or both, from the date hereof through the Closing Date, (i) make
available to the Underwriters or its advisors, or both, prior to acceptance of
its purchase, such information (in addition to that contained in the
Registration Statement and the Prospectus) concerning the offering, the Seller
and any other relevant matters as they possess or can acquire without
unreasonable effort or expense, including any and all documentation requested in
connection with its due diligence efforts regarding information in the
Registration Statement and the Prospectus and in order to evidence the accuracy
or completeness of any of the conditions contained in this Underwriting
Agreement and (ii) provide the Underwriters or its advisors, or both, prior to
acceptance of its subscription, the opportunity to ask questions of, and receive
answers from, the Seller and AmSouth with respect to such matters.
(g) The Seller will cause the Trust to make generally available to
Noteholders,
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as soon as practicable, but no later than sixteen months after the date hereof,
an earnings statement of the Trust covering a period of at least twelve
consecutive months beginning after the later of (i) the effective date of the
registration statement relating to the Notes and (ii) the effective date of the
most recent post-effective amendment to the Registration Statement to become
effective prior to the date of this Agreement and, in each case, satisfying the
provisions of Section 11(a) of the Act (including Rule 158 promulgated
thereunder).
(h) Until the retirement of the Notes, the Seller will deliver to the
Representative the annual statements of compliance and the annual independent
certified public accountants' reports furnished to the Trustee pursuant to the
Basic Documents, as soon as such statements and reports are furnished to the
Trustee.
(i) So long as any of the Notes are outstanding, the Seller will furnish
to the Representative (i) as soon as practicable after the end of the fiscal
year all documents required to be distributed to Noteholders or filed with the
Commission on behalf of the Trust pursuant to the Exchange Act, or any order of
the Commission thereunder and (ii) from time to time, any other information
concerning the Seller or AmSouth as the Representative may reasonably request
only insofar as such information relates to the Registration Statement or the
Prospectus or the transactions contemplated by the Basic Documents.
(j) On or before the Closing Date, the Seller shall cause the computer
records of the Seller and AmSouth relating to the Receivables to show the
ownership by the Owner Trustee on behalf of the Trust of the Receivables, and
from and after the Closing Date neither the Seller nor AmSouth shall take any
action inconsistent with the ownership by the Owner Trustee on behalf of the
Trust of such Receivables, other than as permitted by the Sale and Servicing
Agreement.
(k) To the extent, if any, that any of the ratings provided with respect
to the Notes by the rating agency or agencies that initially rate any of the
Notes are conditional upon the furnishing of documents or the taking of any
other actions by the Seller or AmSouth on or prior to the Closing Date, one of
the Seller or AmSouth shall furnish such documents and take any such other
actions. A copy of any such document shall be provided to the Representative at
the time it is delivered to the rating agencies.
(l) The Seller will pay all expenses incident to the performance of its
obligations under this Agreement, including (i) the printing and filing of the
documents (including the Registration Statement and the Prospectus), (ii) the
preparation, issuance and delivery of the Notes to the Underwriters, (iii) the
fees and disbursements of the Seller's and AmSouth's counsel (including without
limitation, local counsel in the State of Alabama) and accountants, (iv) the
qualification of the Notes under state securities laws, including filing fees
and the fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of any blue sky or legal
investment survey, if any is requested, (v) the printing and delivery to the
Underwriters of copies of the Registration Statement and the Prospectus and each
amendment thereto, (vi) the fees and reasonable expenses of the Underwriters
(other than its counsel), (vii) the fees and reasonable expenses of counsel to
the
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Underwriters in an amount not to exceed $100,000, (viii) any fees charged by
rating agencies for the rating of the Notes, (ix) the fees and expenses of the
Trustee and its counsel and (x) the fees and expenses of the Owner Trustee, the
Trust and each of their counsel.
6. Conditions of the Obligations of the Underwriters. The obligations of
the Underwriters to purchase and pay for the Notes will be subject to the
accuracy, as of the date hereof and as of the Closing Date, of the
representations and warranties on the part of the Seller herein, to the accuracy
of the written statements of officers of the Seller and AmSouth made pursuant to
the provisions of this Section, to the performance by the Seller of its
obligations hereunder and to the following additional conditions precedent:
(a) The Representative shall have received a letter, dated the date
hereof, of Ernst & Young, confirming that such accountants are independent
public accountants within the meaning of the Act and the Rules and Regulations,
and substantially in the form of the drafts to which the Representative has
previously agreed and otherwise in form and substance satisfactory to the
Representative and counsel for the Underwriters (i) regarding certain numerical
information contained in the Prospectus and (ii) relating to certain agreed-upon
procedures.
(b) The Prospectus shall have been filed with the Commission in accordance
with the Rules and Regulations and Section 5(a) hereof. On or prior to the
Closing Date, no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted or, to the knowledge of the Seller, shall be contemplated by the
Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting the Receivables or particularly the business
or properties of the Trust, the Seller or AmSouth which, in the judgment of a
majority in interest of the Underwriters (including the Representative),
materially impairs the investment quality of the Notes; (ii) any downgrading in
the rating of any securities of AmSouth by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Act), or any public announcement that any such organization has under
surveillance or review its rating of any such debt securities (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any suspension or
limitation of trading in securities generally on the New York or American Stock
Exchanges, or any setting of minimum prices for trading on such exchange; (iv)
any suspension of trading of any securities of AmSouth on any exchange, the
NASDAQ National Market or in the over-the-counter market; (v) any banking
moratorium declared by Federal or New York authorities; or (vi) any outbreak or
escalation of major hostilities in which the United States is involved, any
declaration of war or national emergency by Congress, or any other substantial
national or international calamity or emergency if, in the judgment of a
majority in interest of the Underwriters (including the Representative), the
effect of any such outbreak, escalation, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with completion of the sale of
and payment for the Notes.
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(d) On the Closing Date, each of the Basic Documents and the Securities
shall have been duly authorized, executed and delivered by the parties thereto,
shall be in full force and effect and no default shall exist thereunder, and the
Owner Trustee shall have received a fully executed copy thereof or, with respect
to the Notes, a conformed copy thereof. The Basic Documents and the Securities
shall be substantially in the forms heretofore provided to the Representative.
(e) The Representative shall have received an opinion of Mayer, Brown &
Platt, special counsel to the Seller and AmSouth, dated the Closing Date,
satisfactory in form and substance to the Representative, to the effect that:
(i) The Trust has been duly formed and is validly existing in good
standing under the laws of the state of New York, with full corporate power
and authority to own its properties and conduct its business as described
in the Prospectus.
(ii) This Agreement and the Letter Agreement are the legal, valid and
binding obligation of the Seller and AmSouth, respectively. The Basic
Documents to which it is a party have been duly authorized, executed and
delivered by the Trust.
(iii) This Basic Documents (other than the Letter Agreement) to which
each of the Seller, the Trust and AmSouth is a party are the legal, valid
and binding obligation of the Seller, AmSouth and the Trust, enforceable
against the Seller, AmSouth and the Trust in accordance with their terms,
subject as to enforceability to the effects of applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium and similar
laws now or hereafter in effect relating to creditors' rights generally and
subject to general principles of equity (whether in a proceeding at law or
in equity).
(iv) When the Notes have been executed, authenticated and delivered in
accordance with the Indenture and paid for pursuant to this Agreement, the
Notes will be validly issued and outstanding and enforceable in accordance
with their terms, subject as to enforceability to the effects of applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium
and similar laws now or hereafter in effect relating to creditors' rights
generally and subject to general principles of equity (whether in a
proceeding at law or in equity).
(v) To the best of such counsel's knowledge, there are no contracts
or documents of the Seller which are required to be filed as exhibits to
the Registration Statement pursuant to the Act or the Rules or Regulations
which have not been so filed.
(vi) The Registration Statement became effective under the Act as of
August 30, 2000 and, to the best of such counsel's knowledge, no stop order
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suspending the effectiveness of the Registration Statement or any part
thereof or any amendment thereto has been issued under the Act and no
proceeding for that purpose has been instituted or threatened by the
Commission.
(vii) The Seller is not, and will not as a result of the offer and
sale of the Notes as contemplated in the Prospectus and this Agreement
become, an "investment company" as defined in the Investment Company Act of
1940, as amended (the "Investment Company Act"), or a company "controlled
by" an "investment company" within the meaning of the Investment Company
Act.
(viii) The Trust Agreement need not be qualified under the Trust
Indenture Act and the Trust is not required to register under the
Investment Company Act.
(ix) The Indenture has been duly qualified under the Trust Indenture
Act.
(x) The statements in the Prospectus Supplement under the headings
"Summary of Terms -- Material Federal Income Tax Consequences," "Material
Federal Income Tax Consequences," "Summary of Terms --ERISA
Considerations," and "ERISA Considerations," and in the Base Prospectus
under the headings "Material Federal Income Tax Consequences" and "ERISA
Considerations," to the extent that they constitute statements of matters
of law or legal conclusions with respect thereto, have been reviewed by
such counsel and accurately describe the material consequences to holders
of the Notes under the Code and ERISA.
(xi) The Registration Statement relating to the Notes as of its
effective date and the Prospectus as of the date of this Agreement, and any
amendment or supplement thereto, as of its date, complied as to form in all
material respects with the requirements of the Act and the applicable Rules
and Regulations. Such counsel need express no opinion with respect to the
financial statements, the exhibits, annexes and other financial,
statistical, numerical or portfolio data, economic conditions or financial
condition of the portfolio information included in or incorporated by
reference into the Registration Statement relating to the Notes, the
Prospectus or any amendment or supplement thereto.
(xii) The security interest granted by the Trust to the Trustee in
connection with the pledge of the Receivables from Trust to the Trustee
will create a first priority perfected interest upon the filing of
financing statements with the Secretary of State of the State of New York.
Except as evidenced by Financing Statements filed in connection with this
transaction, there are no security interests in the Receivables properly
perfected by the filing of any financing statement naming the Trust as
debtor in the Office of the Secretary of State of New York. Trustee's
security interest in the Receivables described in the financing statement
granted to Trustee by the Trust will have priority over all other security
interests in the Trust's right, title and interest in the Receivables not
arising in connection
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with this transaction that are perfected by the filing of financing
statements in New York subsequent to the filing of the financing statement
referenced in this clause.
(xiii) Such counsel shall state that they have participated in the
preparation of the Registration Statement and the Prospectus, and that no
facts have come to their attention which cause them to believe that the
Registration Statement relating to the Notes as of its effective date, and
the Prospectus, as of the date of this Agreement, and any amendment or
supplement thereto, as of its date when it became effective, contained any
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus on its date contained or on the
Closing Date contains, any untrue statement of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that such counsel need
not express any view with respect to the financial, statistical or
computational material included in or incorporated by reference into the
Registration Statement relating to the Notes, the Prospectus or any
amendment or supplement thereto.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the federal law of the United States of America and the
laws of the State of New York and Delaware.
(f) The Representative shall have received the opinion of Mayer, Brown &
Platt dated the Closing Date, satisfactory in form and substance to the
Representative and counsel for the Underwriters, regarding (1) the creation and
attachment of a security interest in the Receivables (and the other Trust
property, including amounts on deposit in a reserve account) with respect to the
transfer of the Receivables from AmSouth to the Seller and the Seller to the
Trust and the pledge of the Receivables (and the other Trust property, including
amounts on deposit in a reserve account) from the Trust to the Trustee and (2)
the perfection in the pledge of the Receivables (and the other Trust property,
including amounts on deposit in a reserve account) from the Trust to the
Trustee. Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the federal law of the United States of America and the
laws of the State of New York.
(g) The Representative shall have received the opinion of in-house counsel
to AmSouth and the Seller or such other counsel acceptable to the Representative
and counsel for the Underwriters, dated the Closing Date, satisfactory in form
and substance to the Representative and counsel for the Underwriters to the
effect that:
(i) The Seller has been duly formed and is validly existing as a limited
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liability company in good standing under the laws of the state of its
incorporation, with full corporate power and authority to own its
properties and conduct its business, and is duly qualified to transact
business and is in good standing in each jurisdiction in which its failure
to qualify would have a material adverse effect upon the business or the
ownership of its property.
(ii) This Agreement has been duly authorized, executed and delivered
by the Seller. The Basic Documents to which it is a party have been duly
authorized, executed and delivered by the Seller.
(iii) The Seller has full power and authority to sell and assign the
property to be sold and assigned to the Trust by it pursuant to the Sale
and Servicing Agreement and has duly authorized such sale and assignment to
the Trust by all necessary corporate action.
(iv) The Seller has duly authorized, executed and delivered the
written order to the Owner Trustee to execute and deliver the Issuer Order
to the Trustee.
(v) The Seller has duly authorized, executed and delivered the
written order to the Owner Trustee to execute and deliver the Certificates.
(vi) Neither the transfer of certain of the Receivables by the Seller
to the Trustee on behalf of the Trust, nor the assignment by the Seller of
the Trust Estate to the Trust, nor the grant by the Trust of the security
interest in the Collateral to the Owner Trustee pursuant to the Indenture,
nor the execution, delivery and performance by the Seller of the Basic
Documents to which it is a party, nor the consummation by the Seller of the
transactions contemplated thereby will conflict with or result in a breach
of any of the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any of the property or assets of the Seller, pursuant to the terms of
the formation documents of the Seller or any statute, rule, regulation or
order of any governmental agency or body, or any court having jurisdiction
over the Seller or its properties, or any agreement or instrument known to
me after due investigation to which the Seller is a party or by which the
Seller or any of its properties is bound.
(vii) No authorization, license, approval, consent or order of, or
filing with, any court or governmental agency or authority is necessary in
connection with the execution, delivery and performance of this Agreement
and each of the Basic Documents to which it is a party by the Seller.
(viii) To the best of the knowledge of such counsel, there are no
legal or governmental proceedings pending to which the Seller is a party or
of which any property of the Seller is the subject, and no such proceedings
are known to such counsel to be threatened or contemplated by governmental
authorities or
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threatened by others (i) asserting the invalidity of all or any part of
this Agreement or any of the Basic Documents or (ii) that could materially
adversely affect the ability of the Seller to perform its obligations under
any of the Basic Documents to which either is a party.
(ix) Immediately prior to the transfer of certain of the Receivables
by AmSouth pursuant to the Loan Purchase Agreement, AmSouth was the sole
owner of all right, title and interest in the Receivables and the other
property transferred by it to the Seller. Immediately prior to the transfer
of certain of the Receivables by the Seller pursuant to the Sale and
Servicing Agreement, the Seller was the sole owner of all right, title and
interest in the Receivables and the other property transferred by it to the
Trust.
(x) To such counsel's knowledge, after due inquiry, there are no
material legal or governmental proceedings pending or threatened against
the Seller other than those disclosed in the Registration Statement and the
Prospectus.
(xi) AmSouth has been duly organized and is validly existing as a
state bank in good standing under the laws of the State of Alabama, with
full power and authority to own its properties and conduct its business,
and is duly qualified to transact business and is in good standing in each
jurisdiction in which its failure to qualify would have a material adverse
effect upon the business or the ownership of its property.
(xii) This Agreement has been duly authorized, executed and
delivered by AmSouth. The Basic Documents to which it is a party have been
duly authorized, executed and delivered by AmSouth.
(xiii) AmSouth has full power and authority to enter into the Basic
Documents to which it is a party and has duly authorized entering into such
documents by all necessary corporate action.
(xiv) Neither the execution, delivery and performance by AmSouth
of the Basic Documents to which it is a party, nor the consummation by
AmSouth of the transactions contemplated thereby will conflict with or
result in a breach of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien, charge
or encumbrance upon any of the property or assets of AmSouth, pursuant to
the terms of the certificate of incorporation or the by-laws of AmSouth or
any statute, rule, regulation or order of any governmental agency or body,
or any court having jurisdiction over AmSouth or its properties, or any
agreement or instrument known to me after due investigation to which
AmSouth is a party or by which AmSouth or any of its properties is bound.
(xv) To the best of the knowledge of such counsel, there are no
legal or
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governmental proceedings pending to which AmSouth is a party or of which
any property of AmSouth is the subject, and no such proceedings are known
to such counsel to be threatened or contemplated by governmental
authorities or threatened by others (i) asserting the invalidity of all or
any part of this Agreement or any of the Basic Documents or (ii) that could
materially adversely affect the ability of AmSouth to perform its
obligations under any of the Basic Documents to which either is a party.
(xvi) Such counsel is familiar with AmSouth's standard operating
procedures relating to the acquisition of a perfected first priority
security interest in the vehicles financed by AmSouth pursuant to retail
installment sale contracts in the ordinary course of their business.
Assuming that these standard procedures are followed with respect to the
perfection of security interests in the Financed Vehicles, AmSouth has
acquired or will acquire a perfected first priority security interests in
the Financed Vehicles with respect to which it has originated Receivables
sold by it to the Seller.
(xvii) AmSouth has all necessary licenses required by law in
connection with its performance as Servicer pursuant to the Sale and
Servicing Agreement.
(xviii) To such counsel's knowledge, there are no material legal or
governmental proceedings pending or threatened against AmSouth other than
those disclosed in the Registration Statement and the Prospectus.
(xix) No authorization, license, approval, consent or order of, or
filing with, any court or governmental agency or authority, which has not
been obtained or accomplished by Seller or AmSouth, is necessary to be
obtained or accomplished by Seller or AmSouth in connection with the
execution, delivery and performance of this Agreement and each of the Basic
Documents to which it is a party by the Seller or AmSouth.
Such opinion may contain such assumptions, qualifications and limitations
as are customary in opinions of this type and are reasonably acceptable to
counsel to the Underwriters. In rendering such opinion, such counsel may state
that they express no opinion as to the laws of any jurisdiction other than the
federal law of the United States of America and the laws of the State of
Delaware and Alabama.
(h) The Representative shall have received the opinion of Balch &
Bingham LLP, counsel to AmSouth or such other counsel acceptable to the
Representative and counsel for the Underwriters, dated the Closing Date,
satisfactory in form and substance to the Representative and counsel for the
Underwriters to the effect that:
(i) Such counsel shall deliver an opinion regarding Alabama state tax
consequences in form and substance reasonably acceptable to the
Representative and counsel to the Underwriters.
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(ii) The Receivables conveyed by AmSouth to the Seller and by the
Seller to the Trust are chattel paper as defined in the Uniform Commercial
Code as in effect in the State of Alabama.
(iii) If a court concludes that the transfer of the Receivables
from AmSouth to the Seller is a sale, the interest of the Seller in the
Receivables described in the Financing Statements will be perfected upon
the filing of the Financing Statements in the office of the Secretary of
State of the State of Alabama. If a court concludes that such transfer is
not a sale but instead a grant from AmSouth to Seller of a security
interest in the Receivables, such security interest will be perfected upon
the filing of the Financing Statements in the office of the Secretary of
State of the State of Alabama. Except as evidenced by Financing Statements
filed in connection with this transaction, there are no security interests
in the Receivables properly perfected by the filing of any financing
statement naming AmSouth as debtor in the Office of the Secretary of State
of Alabama. Seller's security interest in the Receivables described in the
AmSouth financing statement granted to Seller by AmSouth will have priority
over all other security interests in AmSouth's right, title and interest in
the Receivables not arising in connection with this transaction that are
perfected by the filing of financing statements in Alabama subsequent to
the filing of the AmSouth financing statement.
(iv) If a court concludes that the transfer of the Receivables from
the Seller to the Trust is a sale, the interest of the Trust in the
Receivables described in the Financing Statements will be perfected upon
the filing of the Financing Statements in the office of the Secretary of
State of the State of Alabama. If a court concludes that such transfer is
not a sale, but instead a grant from the Seller to the Trust of a security
interest in the Receivables, such security interest will be perfected upon
the filing of the Financing Statements in the office of the Secretary of
State of the State of Alabama. Except as evidenced by Financing Statements
filed in connection with this transaction, there are no security interests
in the Receivables properly perfected by the filing of any financing
statement naming Seller as debtor in the Office of the Secretary of State
of Alabama. The Trust's security interest in the Receivables described in
the financing statement granted to the Trust by the Seller will have
priority over all other security interests in Seller's right, title and
interest in the Receivables not arising in connection with this transaction
that are perfected by the filing of financing statements in Alabama
subsequent to the filing of the Seller financing statement.
(v) The security interest in the Receivables granted by the Trust to
the Trustee will be a perfected interest upon the filing of financing
statements with the Secretary of State of the State of Alabama. Except as
evidenced by Financing Statements filed in connection with this
transaction, there are no security interests in the Receivables properly
perfected by the filing of any financing statement naming the Trust as
debtor in the Office of the Secretary of State of Alabama.
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Trustee's security interest in the Receivables described in the financing
statement granted to Trustee by the Trust will have priority over all other
security interests in the Trust's right, title and interest in the
Receivables not arising in connection with this transaction that are
perfected by the filing of financing statements in Alabama subsequent to
the filing of the financing statement referenced in this clause.
Such opinion may contain such assumptions, qualifications and limitations
as are customary in opinions of this type and are reasonably acceptable to
counsel to the Underwriters. In rendering such opinion, such counsel may state
that they express no opinion as to the laws of any jurisdiction other than the
laws of the State of Alabama.
(i) The Representative shall have received an opinion addressed to it of
Mayer, Brown & Platt, in its capacity as counsel to the Seller, dated the
Closing Date, with respect to the creation of (x) a "true sale" or a valid and
binding security interest with respect to the transfers of the Receivables from
AmSouth to the Seller and (y) with respect to the transfer of the Receivables to
the Trust, a "true sale" or a valid and binding security interest in the
Receivables and the Seller shall have furnished or caused to be furnished to
such counsel such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters. Such opinions shall be limited to the
laws of the State of New York and United States federal law.
(j) The Representative shall have received an opinion of Hunton &
Williams, counsel to the Trustee, dated the Closing Date and satisfactory in
form and substance to the Representative and counsel for the Underwriters, to
the effect that:
(i) The Trustee has been duly organized as a national banking
association and is validly existing and in good standing under the laws of
the United States of America.
(ii) The Trustee has the requisite power and authority to execute,
deliver and perform its obligations under the Indenture and has taken all
necessary action to authorize the execution, delivery and performance by it
of the Indenture.
(iii) The Indenture has been duly executed and delivered by the
Trustee and constitutes a legal, valid and binding obligation of the
Trustee, enforceable against the Trustee in accordance with its respective
terms, except that such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium, or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(iv) The Notes have been duly authenticated by the Trustee in
accordance with the terms of the Indenture.
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Such opinion may contain such assumptions, qualifications and limitations
as are customary in opinions of this type and are reasonably acceptable to
counsel to the Underwriters. In rendering such opinion, such counsel may state
that they express no opinion as to the laws of any jurisdiction other than the
federal law of the United States of America and the laws of the State of New
York.
(k) The Representative shall have received an opinion of Thacher,
Proffitt & Wood, counsel to the Owner Trustee, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel for the
Underwriters, to the effect that:
(i) The Owner Trustee is a corporation duly incorporated and
organized and validly existing under the laws of the State of New York.
(ii) The Owner Trustee has the full corporate trust power to accept
the office of owner trustee under the Trust Agreement and to enter into and
perform its obligations under the Trust Agreement, the Indenture and the
Sale and Servicing Agreement.
(iii) The execution and delivery of the Trust Agreement, the
Indenture and the Sale and Servicing Agreement, and the performance by the
Owner Trustee of its obligations under the Trust Agreement, the Sale and
Servicing Agreement and the Indenture have been duly authorized by all
necessary action of the Owner Trustee and each has been duly executed and
delivered by the Owner Trustee.
(iv) The Trust Agreement constitutes the valid and binding
obligations of the Owner Trustee enforceable against the Owner Trustee in
accordance with its terms.
(v) The execution and delivery by the Owner Trustee of the Trust
Agreement, the Indenture and the Sale and Servicing Agreement do not
require any consent, approval or authorization of, or any registration or
filing with, any applicable governmental authority.
(vi) Each of the Notes and Certificates has been duly executed and
delivered by the Owner Trustee, on behalf of the Trust.
(vii) Neither the consummation by the Owner Trustee of the
transactions contemplated in the Sale and Servicing Agreement, the
Indenture or the Trust Agreement nor the fulfillment of the terms thereof
by the Owner Trustee will conflict with, result in a breach or violation
of, or constitute a default under any law of the United States of America
or the State of New York governing its banking or trust powers or the
charter, by-laws or other organizational documents of the Owner Trustee.
(viii) No approval, authorization or other action by, or filing
with, any
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governmental authority of the United States of America or the State of New
York having jurisdiction over the banking or trust powers of the Owner
Trustee is required in connection with the execution and delivery by the
Owner Trustee of the Trust Agreement, the Indenture or the Sale and
Servicing Agreement.
Such opinion may contain such assumptions, qualifications and limitations
as are customary in opinions of this type and are reasonably acceptable to
counsel to the Underwriters. In rendering such opinion, such counsel may state
that they express no opinion as to the laws of any jurisdiction other than the
federal law of the United States of America and the laws of the State of New
York.
(l) The Representative shall have received an opinion of Richards' Layton
& Finger, special Delaware counsel for the Seller, dated the Closing Date,
satisfactory in form and substance to the Representative and counsel for the
Underwriters with respect to certain bankruptcy matters relating to the Seller.
(m) The Representative shall have received copies of each opinion of
counsel delivered to either rating agency, together with a letter addressed to
the Underwriters, dated the Closing Date, to the effect that the Underwriters
may rely on each such opinion to the same extent as though such opinion was
addressed to each as of its date.
(n) The Representative shall have received a certificate dated the Closing
Date of the Seller, executed by any two of the Chairman of the Board, the
President, any Executive Vice President, Senior Vice President or Vice
President, the Treasurer, any Assistant Treasurer, the Secretary, the principal
financial officer or the principal accounting officer of the Seller, in which
such officer shall state that, (i) the representations and warranties of the
Seller, contained in this Agreement and the Basic Documents to which it is a
party are true and correct, (ii) that the Seller, has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
under such agreements at or prior to the Closing Date, and (iii) since the date
of its incorporation, except as may be disclosed in the Prospectus or in such
certificate, no material adverse change, or any development involving a
prospective material adverse change, in or affecting particularly the business
or properties of the Trust, AmSouth or the Seller, has occurred.
(o) The Representative shall have received a certificate dated the Closing
Date of AmSouth, executed by any two of the Chairman of the Board, the
President, any Executive Vice President, Senior Vice President or Vice
President, the Treasurer, any Assistant Treasurer, the Secretary, the principal
financial officer or the principal accounting officer of AmSouth in which such
officer shall state that (i) the representations and warranties of AmSouth
contained in this Agreement, the Loan Purchase Agreement and the Sale and
Servicing Agreement are true and correct, (ii) that AmSouth has complied with
all agreements and satisfied all conditions on its part to be performed or
satisfied under such agreements at or prior to the Closing Date and (iii) since
December 31, 1999, except as may be disclosed in the Prospectus or in such
certificate, no material adverse change, or any development involving a
prospective material adverse change, in or affecting particularly the business
or properties of the Trust, AmSouth or the Seller, has occurred.
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(p) The Representative shall have received evidence satisfactory to it and
counsel for the Underwriters that, on or before the Closing Date, UCC-1
financing statements shall have been submitted to the Owner Trustee or Trustee,
as the case may be, for filing in the appropriate filing offices reflecting (1)
the transfer of the interest in the Receivables, certain other property and the
proceeds thereof (A) from AmSouth to the Seller and (B) from the Seller to the
Trust, and (2) the grant of the security interest by the Trust in the
Receivables, certain other property and the proceeds thereof to the Trustee.
(q) The Class A-1 Notes shall be rated in the highest short-term rating
category by each of Moody's and S&P, the Class A-2 Notes, Class A-3 Notes and
Class A-3 Notes shall be rated "AAA" or its equivalent, in each case by Moody's
and S&P, the Class B Notes shall be rated "A" or its equivalent, in each case by
Moody's and S&P and the Class C Notes shall be rated in the "BBB" category or
its equivalent, in each case by Moody's and S&P and neither corporation shall
have placed the Notes under surveillance or review with possible negative
implications.
(r) The Seller will provide or cause to be provided to the Representative
such conformed copies of such of the foregoing opinions, certificates, letters
and documents as the Representative shall reasonably request.
7. Indemnification and Contribution.
--------------------------------
(a) The Seller will indemnify and hold harmless each Underwriter against
any and all losses, claims, damages or liabilities, joint or several, or any
action in respect thereof (including but not limited to, any loss, claim, damage
or liability (or action relating to purchases and sales of the Notes)), to which
such Underwriter may become subject, under the Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained or incorporated in the
Registration Statement, the Prospectus, or any amendment or supplement thereto,
or any related preliminary prospectus, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Seller shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission made in the
Registration Statement, the Prospectus, or any amendment or supplement thereto,
or any related preliminary prospectus in reliance upon and in conformity with
the Underwriters' Information.
(b) Each Underwriter will indemnify and hold harmless the Seller against
any losses, claims, damages or liabilities to which the Seller may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact
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contained in the Registration Statement, the Prospectus, or any amendment or
supplement thereto or any related preliminary prospectus, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in the Registration Statement, the Prospectus, or any amendment or supplement
thereto or any related preliminary prospectus in reliance upon and in conformity
with the Underwriters' Information, and will reimburse the Seller for any legal
or other expenses reasonably incurred by the Seller in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or(b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party under subsection (a) or (b) above, except to the extent it
has been materially prejudiced by such failure and, provided further, that the
failure to notify any indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under subsection (a)
or(b) above. In case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate therein and to the
extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, except to the extent provided in the next following paragraph,
the indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case, subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
Any indemnified party shall have the right to employ separate counsel in
any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel;
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<PAGE>
or (iii) the indemnifying party has failed to assume the defense of such action
and employ counsel satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to local counsel) at any time for all such indemnified parties, which
firm shall be designated in writing by the Underwriters, if the indemnified
parties under this Section 7 consist of the Underwriters, or by the Seller, if
the indemnified party under this Section 7 consists of the Seller.
(d) If the indemnification provided for in this Section 7 is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above in respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Seller on the one hand and the Underwriters on the other from the
offering of the Notes. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above and the
indemnifying party is materially prejudiced by such failure, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Seller on the one hand and
the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Seller on the one hand and the Underwriters on
the other shall be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the Seller bear to
the underwriting discounts and commissions received by the Underwriters (the
"Spread"). The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Seller on the one hand or the Underwriters on the other and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Seller and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this subsection (d).
The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof) referred
to above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
-23-
<PAGE>
provisions of this subsection (d), in no case shall any Underwriter be
responsible for any amount (not including the fees and expenses of its counsel)
in excess of the Spread received by such Underwriter, as set forth on the cover
page of the Prospectus. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters in this subsection (d) to contribute are several
in proportion to their respective underwriting obligations with respect to the
Notes underwritten by such Underwriter and not joint.
(e) The obligations of the Seller under this Section 7 shall be in addition
to any liability which the Seller may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act and the obligations of the Underwriters under this
Section 7 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Seller, and each person, if any,
who controls any Underwriter within the meaning of the Act.
(f) The Underwriters confirm that the information set forth in the second
paragraph (including the selling concession and reallowance chart at the end of
such paragraph) and the second sentence of the third paragraph, under the
caption "Underwriting" in the Prospectus Supplement (the "Underwriters'
Information") is correct and constitutes the only information furnished in
writing to the Seller by or on behalf of the Underwriters specifically for
inclusion in the Registration Statement and the Prospectus.
8. Default of Underwriter. If any of the Underwriters default in their
obligations to purchase Notes hereunder, and the aggregate principal amount of
Notes that the defaulting Underwriter agreed but failed to purchase does not
exceed 10% of the total principal amount of the Notes, the Underwriters may make
arrangements for the purchase of such Notes by other persons including the non-
defaulting Underwriters, but if no such arrangements are made by the Closing
Date, the non-defaulting Underwriters shall be obligated, in proportion to its
commitment hereunder, to purchase the Notes that such defaulting Underwriter
agreed but failed to purchase. If any of the Underwriters so default and the
aggregate principal amount of Notes with respect to which such default or
defaults occur exceeds 10% of the total principal amount of Notes and
arrangements satisfactory to the Underwriters and the Seller for the purchase of
such Notes by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of the Seller,
except as provided in Section 9 hereof. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve the Underwriter from liability for its
default.
9. Survival of Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Seller or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement or contained in certificates of officers of the Seller submitted
pursuant hereto shall remain operative and in full force and effect, regardless
of any investigation or statement as to the results thereof, made by or on
behalf
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<PAGE>
of the Underwriters, the Seller or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Notes. If for any reason the purchase of the Notes by the
Underwriters is not consummated, the Seller shall remain responsible for the
expenses to be paid or reimbursed by the Seller pursuant to Section 5(l) and the
respective obligations of the Seller, the Seller and the Underwriters pursuant
to Section 7 shall remain in effect. If for any reason the purchase of the Notes
by the Underwriters is not consummated (other than because of a failure to
satisfy the conditions set forth in items (iii), (v) and (vi) of Section 6(c) or
a default by the Underwriters pursuant to Section 8), the Seller will reimburse
the Underwriters for all out-of-pocket expenses reasonably incurred by it in
connection with the offering of the Notes.
10. Notices. Any written request, demand, authorization, direction, notice,
consent or waiver shall be personally delivered or mailed certified mail, return
receipt requested (or in the form of telex or facsimile notice, followed by
written notice as aforesaid) and shall be deemed to have been duly given upon
receipt, if sent to the Underwriters, when delivered to the Representative at 85
Broad Street, New York, New York 10004, Attention: Tom Lasersohn (fax # (212)
902-4024) and if sent to the Seller when delivered to 1900 Fifth Avenue North,
Amsouth Sonat Tower, Birmingham, Alabama 35203, Attention: Kurt Miller (Fax #
(205) 583-4497).
11. Successors. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
directors and controlling persons referred to in Section 7, and no other person
will have any right or obligations hereunder.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to the choice
of law provisions thereof.
14. Representation of Underwriters. The Representative will act for
the several Underwriters in connection with the transactions described in this
Agreement, and any action taken by Representative under this Agreement will be
binding upon all the Underwriters.
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<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement among the Seller and the
Underwriters in accordance with its terms.
Very truly yours,
AMSOUTH AUTO RECEIVABLES LLC
By: AMSOUTH BANK, its managing member
By: /s/ R. Mark Graf
---------------------------
Name: R. Mark Graf
Title: Senior Vice President
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first written above.
GOLDMAN, SACHS & CO.
By: /s/ Jonathan Coblentz
----------------------------
Acting on behalf of itself and as the
Representative of the Several
Underwriters
-26-
<PAGE>
SCHEDULE I
OFFICES
Alabama Secretary of State
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
Initial Principal Initial Principal Initial Principal Initial Principal Initial Principal Initial Principal
Balance of Balance of Balance of Balance of Balance of Balance of
Underwriter Class A-1 Notes Class A-2 Notes Class A-3 Notes Class A-4 Notes Class B Notes Class C Notes
------------- ----------------- ----------------- ----------------- ----------------- ----------------- -----------------
<S> <C> <C> <C> <C> <C> <C>
Goldman, $ 78,000,000 $ 80,000,000 $105,000,000 $ 35,640,000 $28,510,000 $14,260,000
Sachs & Co.
Bear, Stearns 76,000,000 80,000,000 105,000,000 34,000,000
& Co. Inc.
Salomon Smith 76,000,000 80,000,000 105,000,000 34,000,000
Barney ------------ ------------ ------------ ------------
Total $230,000,000 $240,000,000 $315,000,000 $103,640,000 $28,510,000 $14,260,000
</TABLE>
<PAGE>
SCHEDULE III
<TABLE>
<CAPTION>
Original
Principal Investor Investor
Security Balance $ Price % Price $ Price % Price $ Rate %
-------------- ----------- ----------- -------------- ----------- -------------- ------
<S> <C> <C> <C> <C> <C> <C>
Class A-1 Notes $230,000,000 100.000000% $ 230,000,000 99.900000% 229,770,000.00 6.745%
Class A-2 Notes $240,000,000 99.999447% 239,998,672.80 99.859447% 239,662,672.80 6.700%
Class A-3 Notes $315,000,000 99.995423% 314,985,582.45 99.825423% 314,450,082.45 6.670%
Class A-4 Notes $103,640,000 99.981216% 103,620,532.26 99.781216% 103,413,252.26 6.760%
Class B Notes $ 28,510,000 99.998017% 28,509,434.65 99.618017% 28,401,096.65 7.080%
Class C Notes $ 14,260,000 99.986485% 14,258,072.76 99.256485% 14,153,974.76 7.440%
</TABLE>
<TABLE>
<S> <C>
Total Price to Public: $931,372,294.92
Total Price to Seller: $929,851,078.92
Underwriting Discounts
and Commissions: $ 1,521,216.00
</TABLE>
-2-
<PAGE>
Exhibit A
October 12, 2000
Goldman, Sachs & Co., as Representative
of the Several Underwriters (the
"Representative")
85 Broad Street
New York, NY 10004
Re: Underwriting Agreement for AmSouth Auto Trust 2000-1, dated October 12,
2000 the "Underwriting Agreement") between AmSouth Auto Receivables LLC
(the "Seller"), and Goldman, Sachs & Co. ,as representative (the
"Representative") of the several underwriters (the "Underwriters").
Ladies and Gentlemen:
Pursuant to the Underwriting Agreement, the Seller has undertaken certain
financial obligations with respect to the indemnification of the Underwriters
with respect to the Registration Statement, and the Prospectus described in the
Underwriting Agreement. Any financial obligations of the Seller under the
Underwriting Agreement, whether or not specifically enumerated in this
paragraph, are hereinafter referred to as the "Joint and Several Obligations;"
provided, however, that "Joint and Several Obligations" shall mean only the
financial obligations of the Seller under the Underwriting Agreement (including
the payment of money damages for a breach of any of the Seller's obligations
under the Underwriting Agreement, whether financial or otherwise) but shall not
include any obligations not relating to the payment of money.
As a condition of its execution of the Underwriting Agreement, the
Underwriters have required the undersigned, AmSouth Bank ("AmSouth"), the parent
corporation of the Seller, to acknowledge its joint and several liability with
the Seller for the payment of the Joint and Several Obligations under the
Underwriting Agreement.
Now, therefore, the Underwriters and AmSouth do hereby agree that:
1. AmSouth hereby agrees to be absolutely and unconditionally jointly and
severally liable with the Seller to the Underwriters for the payment of the
Joint and Several Obligations under the Underwriting Agreement.
2. AmSouth may honor its obligations hereunder either by direct payment of any
Joint and Several Obligations or by causing any Joint and Several Obligations to
be paid to the Underwriters by the Seller or another affiliate of AmSouth.
Capitalized terms used herein and not defined herein shall have their
respective meanings as set forth in the Underwriting Agreement.
Very truly yours,
AMSOUTH BANK
By:_____________________
Name:
Title:
GOLDMAN, SACHS & CO.
By:______________________
