EXHIBIT 10.1
EXECUTION COPY
SALE AND SERVICING
AGREEMENT
among
AMSOUTH AUTO TRUST 2000-1
as
Issuer
AMSOUTH AUTO RECEIVABLES LLC
as
Seller
AMSOUTH BANK,
as Servicer
and
THE BANK OF NEW YORK TRUST
COMPANY OF FLORIDA, NATIONAL ASSOCIATION
as Indenture Trustee
Dated as of October 1, 2000
2000-1 SALE AND SERVICING AGREEMENT
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I. DEFINITIONS..................................................... 1
SECTION 1.1. Definitions.............................................. 1
SECTION 1.2. Other Interpretive Provisions............................ 1
ARTICLE II. CONVEYANCE OF RECEIVABLES...................................... 2
SECTION 2.1. Conveyance of Receivables................................ 2
ARTICLE III. THE RECEIVABLES............................................... 3
SECTION 3.1. Representations and Warranties with
respect to the Receivable................................ 3
SECTION 3.2. Repurchase upon Breach................................... 4
SECTION 3.3. Custodian of Receivable Files............................ 5
ARTICLE IV. ADMINISTRATION AND SERVICING OF RECEIVABLES.................... 8
SECTION 4.1. Duties of Servicer....................................... 8
SECTION 4.2. Collection of Receivable Payments........................ 9
SECTION 4.3. Realization upon Receivables............................. 9
SECTION 4.4. Physical Damage Insurance................................ 10
SECTION 4.5. Maintenance of Security Interests in Financed Vehicles... 11
SECTION 4.6. Covenants of Servicer.................................... 11
SECTION 4.7. Purchase by Servicer upon Breach......................... 11
SECTION 4.8. Servicing Fee............................................ 12
SECTION 4.9. Servicer's Report........................................ 12
SECTION 4.10. Annual Statement as to Compliance; Notice of Default.... 12
SECTION 4.11. Annual Independent Certified Public
Accountants' Report..................................... 13
SECTION 4.12. Access to Certain Documentation and Information
Regarding Receivables................................... 13
SECTION 4.13. Reports to the Commission............................... 14
SECTION 4.14. Reports to the Rating Agencies.......................... 14
SECTION 4.15. Servicer Expenses....................................... 14
ARTICLE V. DISTRIBUTIONS; RESERVE ACCOUNT;
STATEMENTS TO CERTIFICATEHOLDERS
AND NOTEHOLDERS........................................................ 14
SECTION 5.1. Establishment of Collection Account...................... 14
SECTION 5.2. Collections.............................................. 17
SECTION 5.3. [Reserved]............................................... 17
SECTION 5.4. Additional Deposits...................................... 17
SECTION 5.5. Distributions............................................ 18
SECTION 5.6. Statements to Certificateholders and Noteholders......... 19
SECTION 5.7. Net Deposits............................................. 20
SECTION 5.8. Reserve Account....................................... 21
ARTICLE VI. SELLER....................................................... 23
SECTION 6.1. Representations of Seller............................. 23
SECTION 6.2. Continued Existence................................... 25
SECTION 6.3. Liability of Seller; Indemnities...................... 25
SECTION 6.4. Merger or Consolidation of, or Assumption of the
Obligations of, Seller.............................. 26
SECTION 6.5. Limitation on Liability of Seller and Others.......... 26
SECTION 6.6. Seller May Own Certificates or Notes.................. 27
SECTION 6.7. Security Interest..................................... 27
SECTION 6.8. Indebtedness of Seller................................ 27
ARTICLE VII. SERVICER.................................................... 27
SECTION 7.1. Representations of Servicer........................... 27
SECTION 7.2. Indemnities of Servicer............................... 29
SECTION 7.3. Merger or Consolidation of, or Assumption of the
Obligations of, Servicer............................ 30
SECTION 7.4. Limitation on Liability of Servicer and Others........ 30
SECTION 7.5. AmSouth Bank Not To Resign as Servicer................ 31
SECTION 7.6. Existence............................................. 31
SECTION 7.7. Servicer May Own Notes or Certificates................ 31
ARTICLE VIII. SERVICER TERMINATION EVENTS................................ 32
SECTION 8.1. Servicer Termination Event............................ 32
SECTION 8.2. Appointment of Successor.............................. 33
SECTION 8.3. Payment of Servicing Fee.............................. 34
SECTION 8.4. Notification to Noteholders and Certificateholders.... 34
SECTION 8.5. Waiver of Past Defaults............................... 34
ARTICLE IX. TERMINATION.................................................. 35
SECTION 9.1. Optional Purchase of All Receivables;
Termination Notice.................................. 35
ARTICLE X. MISCELLANEOUS PROVISIONS...................................... 35
SECTION 10.1. Amendment............................................. 35
SECTION 10.2. Protection of Title to Trust Property................. 36
SECTION 10.3. Notices............................................... 38
SECTION 10.4. Assignment............................................ 39
SECTION 10.5. Litigation and Indemnities............................ 39
SECTION 10.6. Limitations on Rights of Others....................... 39
SECTION 10.7. Severability.......................................... 40
SECTION 10.8. Separate Counterparts................................. 40
SECTION 10.9. Headings.............................................. 40
SECTION 10.10. Governing Law......................................... 40
SECTION 10.11. Assignment to Indenture Trustee........................ 40
SECTION 10.12. Nonpetition Covenant................................... 40
SECTION 10.13. Limitation of Liability of Owner
Trustee and Indenture Trustee........................ 40
SECTION 10.14. Further Assurances..................................... 41
SECTION 10.15. No Waiver; Cumulative Remedies......................... 41
SCHEDULES
Schedule A -- Schedule of Receivables
Schedule B -- Location of Receivables
EXHIBITS
Exhibit A -- Form of Servicer's Report
APPENDIX
Appendix X -- Definitions
SALE AND SERVICING AGREEMENT dated as of October 1, 2000, (this
"Agreement") among AMSOUTH AUTO TRUST 2000-1, a New York common law trust
("Issuer"), AMSOUTH AUTO RECEIVABLES LLC, a Delaware limited liability company
(in its capacity as seller, "Seller"), AMSOUTH BANK, a banking corporation
organized under the laws of the State of Alabama (in its capacity as servicer,
"Servicer") and THE BANK OF NEW YORK TRUST COMPANY OF FLORIDA, NATIONAL
ASSOCIATION, a national banking association (in its capacity as indenture
trustee, "Indenture Trustee").
WHEREAS, Issuer desires to purchase from Seller a portfolio of receivables
arising in connection with Motor Vehicle Loans secured by new and used
automobiles and light trucks purchased from motor vehicle dealers by AmSouth
Bank and sold to Seller under the Purchase Agreement;
WHEREAS, Seller is willing to sell such receivables to Issuer; and
WHEREAS, Servicer is willing to service such receivables.
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 this Agreement.
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 as in effect in the relevant jurisdiction 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, Appendix or Exhibit are references
to Articles, Sections, Schedules, Appendices 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 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.
2000-1 SALE AND SERVICING AGREEMENT
ARTICLE II. CONVEYANCE OF RECEIVABLES.
SECTION 2.1. Conveyance of Receivables. In consideration of Issuer's
delivery to, or upon the order of, Seller of Notes and Certificates, in
aggregate principal amounts equal to the initial principal amounts of the Notes
and the initial Certificate Percentage Interests, respectively, Seller does
hereby sell, transfer, assign, set over and otherwise convey to Issuer, without
recourse, subject to the obligations herein (collectively, the "Trust
Property"):
(a) all right, title and interest of Seller in and to the Receivables, and
all moneys received thereon after the Cutoff Date;
(b) all right, title and interest of Seller in the security interests in
the Financed Vehicles granted by Obligors pursuant to the Receivables and any
other interest of Seller in the Financed Vehicles and any other property that
shall secure the Receivables;
(c) the interest of Seller 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;
(d) 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;
(e) the interest of Seller in any proceeds from (i) 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, (ii) a default by
an Obligor resulting in the repossession of the Financed Vehicle under the
applicable Motor Vehicle Loan or (iii) any Dealer Recourse or other rights
relating to the Receivables under Dealer Agreements;
(f) all right, title and interest in all funds on deposit from time to
time in the Certificate Distribution Account and the Trust Accounts, and in all
investments and proceeds thereof (but excluding all investment income thereon);
(g) all right, title and interest of Seller under the Purchase Agreement,
including the right of Seller to cause AmSouth Bank to repurchase Receivables
from Seller pursuant to the Purchase Agreement;
(h) all right, title and interest of Seller in any instrument or document
relating to the Receivables; and
(i) the proceeds of any and all of the foregoing.
2000-1 SALE AND SERVICING AGREEMENT
2
The sale, transfer, assignment, setting over and conveyance made hereunder
shall not constitute and is not intended to result in an assumption by Issuer of
any obligation of AmSouth Bank or Seller 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 Seller and Issuer that (i) the assignment
and transfer herein contemplated constitute a sale of the Receivables and the
other Trust Property described above, conveying good title thereto free an clear
of any liens, encumbrances, security interests or rights of other Persons, from
Seller to Issuer and (ii) the Receivables and the other Trust Property described
above not be a part of Seller's estate in the event of a bankruptcy or
insolvency of Seller. If, notwithstanding the intention of Seller and Issuer,
such conveyance is deemed to be a pledge in connection with a financing or is
otherwise deemed not to be a sale, Seller hereby grants, and the parties intend
that Seller shall have granted, to Issuer a first priority perfected security
interest in all of Seller's right, title and interest in the items of the Trust
Property and all proceeds of the foregoing, and that this Agreement shall
constitute a security agreement under applicable law and Issuer shall have all
of the rights and remedies of a secured party and creditor under the UCC as in
force in the relevant jurisdictions.
ARTICLE III THE RECEIVABLES.
SECTION 3.1. Representations and Warranties with respect to the
Receivables. (a) AmSouth Bank has made the representations and warranties set
forth in Section 3.3 of the Purchase Agreement, and has consented to the
assignment by Seller to Issuer of Seller's rights with respect thereto. Pursuant
to Section 2.1 of this Agreement, Seller has transferred to Issuer all of
Seller's right, title and interest in, to and under the Purchase Agreement,
including the representations and warranties of AmSouth Bank therein, upon which
Issuer relies in accepting the Receivables, together with all rights of Seller
with respect to any breach thereof, including the right to require AmSouth Bank
to purchase Receivables in accordance with the Purchase Agreement.
(b) Seller hereby makes the following representations and warranties as to
each Receivable conveyed by it to Issuer hereunder on which Issuer shall rely in
acquiring the Receivables. Unless otherwise indicated, such representations and
warranties shall speak as of the Closing Date, but shall survive the transfer
and assignment of the Receivables to Issuer and the pledge thereof to Indenture
Trustee pursuant to the Indenture.
(i) Good Title. It is the intention of Seller that the transfer and
assignment herein contemplated constitute a sale of the Receivables from
Seller to Issuer and that the beneficial interest in and title to the
Receivables not be part of Seller's estate in the event of the filing of a
bankruptcy petition by or against Seller under any bankruptcy law. No
Receivable has been sold, transferred, assigned, or pledged by Seller to
any Person other than Issuer. Immediately prior to the transfer and
assignment herein contemplated, Seller
2000-1 SALE SERVICING AGREEMENT
3
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
Issuer and immediately upon the transfer and assignment of the Receivable
to Issuer, Issuer shall have good and marketable title to the Receivable,
free and clear of any Lien; and Issuer's interest in the Receivable
resulting from the transfer has been perfected under the UCC.
(ii) No Assignment. As of the Closing Date, Seller 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 Issuer.
(iii) Marking Records. By the Closing Date, Seller shall have caused
the portions of Seller's electronic master record of Motor Vehicle Loans
relating to the Receivables to be clearly and unambiguously marked to show
that the Receivables are owned by Issuer in accordance with the terms of
this Agreement.
SECTION 3.2. Repurchase upon Breach. Seller, Servicer, Indenture Trustee or
Owner Trustee, as the case may be, shall inform the other parties to this
Agreement promptly, in writing, upon the discovery (or, with respect to the
Indenture Trustee or Owner Trustee, upon actual knowledge of a Responsible
Officer) of any breach or failure to be true of the representations or
warranties made by AmSouth Bank in Section 3.3 of the Purchase Agreement or made
by Seller in Section 3.1, provided that the failure to give such notice shall
not affect any obligation of AmSouth Bank or Seller. 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 or Seller, as applicable, elects, the
30th day) after the date on which Seller becomes aware of, or receives written
notice from Owner Trustee, Indenture Trustee or Servicer 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 or Seller,
as applicable, shall repurchase each such affected Receivable from Issuer 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, and, with
respect to breaches of any representation or warranty made by AmSouth Bank in
Section 3.3 of the Purchase Agreement, Seller shall enforce the obligation of
AmSouth Bank under the Purchase Agreement to purchase the affected Receivables.
Notwithstanding the foregoing, any such breach or failure with respect to the
representations and warranties contained in Section 3.1 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 Issuer to
receive and retain payment in full on such Receivable. In consideration of the
repurchase of a Receivable hereunder, Seller shall remit 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. The sole remedy (except as provided in
Section 4.2 of the Purchase Agreement and Section 6.3 of this Agreement) of
Issuer, the Owner Trustee, the Indenture Trustee or the Holders with respect to
a breach or failure to be true of the representations or warranties made by
Seller pursuant to Section 3.1 shall be to require Seller to repurchase
Receivables pursuant to this Section; provided that this Section shall not limit
the
2000-1 SALE AND SERVICING AGREEMENT
4
right of the Servicer, Owner Trustee or Indenture Trustee to enforce (or to
cause Seller to enforce) the obligation of AmSouth Bank pursuant to the Purchase
Agreement.
With respect to all Receivables repurchased pursuant to this Section 3.2,
Issuer shall assign to AmSouth Bank or Seller, as applicable, without recourse,
all of Issuer's right, title and interest in and to such Receivables and all
security and documents, relating thereto.
SECTION 3.3. Custodian of Receivable Files. (a) Custody. To assure uniform
quality in servicing the Receivables and to reduce administrative costs, Issuer,
upon the execution and delivery of this Agreement, revocably appoints Custodian,
as agent, and Custodian accepts such appointment, to act as agent on behalf of
Issuer to maintain custody of the following documents or instruments, which are
hereby constructively delivered to Issuer with respect to each Receivable
(collectively, a "Receivable File"):
(i) the fully executed original Receivable;
(ii) the original credit application, fully executed by the Obligor or
a photocopy thereof, or a record thereof on a computer file, diskette or on
microfiche;
(iiI) the original certificate of title, or such other documents as
AmSouth Bank keeps on file, in accordance with its customary procedures,
evidencing the security interest of AmSouth Bank in the Financed Vehicle;
(iv) originals or true copies of all documents, instruments or
writings relating to extensions, amendments or waivers of the Receivable or
a photocopy thereof, or a record thereof on a computer file, diskette or on
microfiche; and
(v) any and all other documents or electronic records that AmSouth
Bank or Servicer, as the case may be, keeps on file, in accordance with its
customary procedures, relating to the Receivable, any Insurance Policies,
the Obligor or the Financed Vehicle.
(b) Safekeeping. Servicer, in its capacity as Custodian, shall hold the
Receivable Files as agent on behalf of Issuer and maintain such accurate and
complete accounts, records and computer systems pertaining to each Receivable as
shall enable Servicer and Issuer to comply with the terms and provisions of this
Agreement applicable to them. In performing its duties as Custodian hereunder,
Custodian shall act with reasonable care, exercising the degree of skill,
attention and care that Custodian exercises with respect to receivable files
relating to other similar motor vehicle loans owned and/or serviced by Custodian
and that is consistent with industry standards. In accordance with its customary
practice with respect to its retail installment sale contracts, Custodian shall
conduct, or cause to be conducted, periodic audits of the Receivable Files held
by it under this Agreement, and of the related accounts, records, and computer
systems, and shall maintain the Receivable Files in such a manner as shall
enable the Owner Trustee and the Indenture Trustee to verify, if the Owner
Trustee or the Indenture Trustee so elects, the accuracy of the record keeping
of Custodian. Custodian shall promptly report to
2000-1 SALE AND SERVICING AGREEMENT
5
Owner Trustee any failure on its part to hold the Receivable Files and maintain
its accounts, records and computer systems as herein provided, and promptly take
appropriate action to remedy any such failure. Custodian hereby acknowledges
receipt of the Receivable File for each Receivable listed on the Schedule of
Receivables. Nothing herein shall be deemed to require Issuer, Owner Trustee or
Indenture Trustee to verify the accuracy of the record keeping of the Custodian.
(c) Maintenance of and Access to Records. Custodian shall maintain each
Receivable File at the location specified in Schedule B to this Agreement, or at
such other office of Custodian within the United States (or, in the case of any
successor Custodian, within the State in which its principal place of business
is located) as shall be specified to Issuer by 30 days' prior written notice.
Custodian shall make available to Owner Trustee, Indenture Trustee and their
respective agents (or, when requested in writing by Owner Trustee or Indenture
Trustee, their respective attorneys or auditors) the Receivable Files and the
related accounts, records and computer systems maintained by Custodian at such
times as Owner Trustee or Indenture Trustee shall instruct for purposes of
inspecting, auditing or making copies of abstracts of the same, but only upon
reasonable notice and during the normal business hours at the respective offices
of Custodian.
(d) Release of Documents. Upon written instructions from Indenture Trustee
(or, if no Notes are then Outstanding, Owner Trustee), Custodian shall release
any document in the Receivable Files to Indenture Trustee or Owner Trustee or
its respective agent or designee, as the case may be, at such place or places as
Indenture Trustee or Owner Trustee may designate, as soon thereafter as is
practicable. Any document so released shall be handled by Indenture Trustee or
Owner Trustee with due care and returned to Custodian for safekeeping as soon as
Indenture Trustee or Owner Trustee or its respective agent or designee, as the
case may be, shall have no further need therefor.
(e) Title to Receivables. Custodian agrees that, in respect of any
Receivable File held by Custodian hereunder, Custodian will not at any time have
or in any way attempt to assert any interest in such Receivable File or the
related Receivable, other than solely for the purpose of collecting or enforcing
the Receivable for the benefit of Issuer and that the entire equitable interest
in such Receivable and the related Receivable File shall at all times be vested
in Issuer.
(f) Instructions; Authority to Act. Custodian shall be deemed to have
received proper instructions with respect to the Receivable Files upon its
receipt of written instructions signed by an Authorized Officer of Indenture
Trustee or Owner Trustee, as applicable. A certified copy of excerpts of certain
resolutions of the Board of Directors of Indenture Trustee or Owner Trustee, as
applicable, shall constitute conclusive evidence of the authority of any such
Authorized Officer to act and shall be considered in full force and effect until
receipt by Custodian of written notice to the contrary given by Indenture
Trustee or Owner Trustee, as applicable.
(g) Custodian's Indemnification. Subject to Section 10.5, Custodian shall
indemnify and hold harmless Issuer, Owner Trustee (individually and in such
capacity) and Indenture
2000-1 Sale and Servicing Agreement
6
Trustee (individually and in such capacity), and each of their respective
officers, directors, employees and agents and the Holders from and against any
and all liabilities, obligations, losses, compensatory damages, payments, costs
or expenses (including reasonable legal fees and expenses if any) of any kind
whatsoever that may be imposed on, incurred or asserted against Issuer, Owner
Trustee, Indenture Trustee or the Holders as the result of any act or omission
of Custodian relating to the maintenance and custody of the Receivable Files;
provided that Custodian shall not be liable hereunder to the Owner Trustee or
Indenture Trustee to the extent that such liabilities, obligations, losses,
compensatory damages, payments, costs or expenses result from the willful
misfeasance, bad faith or negligence of Owner Trustee or Indenture Trustee, as
the case may be. Indemnification under this subsection (g) shall survive
termination of this Agreement and the resignation or removal of Owner Trustee or
Indenture Trustee, as the case may be. If Custodian shall have made any
indemnity payments to Owner Trustee or Indenture Trustee pursuant to this
Section and Owner Trustee or Indenture Trustee thereafter shall collect any of
such amounts from Persons other than Custodian, Owner Trustee or Indenture
Trustee, as the case may be, shall, as soon as practicable following such
receipt thereof, repay such amounts to Custodian, without interest.
(h) Effective Period and Termination. Servicer's appointment as Custodian
shall become effective as of the Cutoff Date and shall continue in full force
and effect until terminated pursuant to this subsection (h). If Servicer shall
resign as Servicer in accordance with Section 7.5 or if all of the rights and
obligations of Servicer shall have been terminated under Section 8.1, the
appointment of Servicer as Custodian hereunder may be terminated by the Owner
Trustee or Indenture Trustee or by the Holders of Notes evidencing not less than
25% of the aggregate Outstanding Amount of the Notes of the Controlling Note
Class (or, if no Notes are then Outstanding, the Holders of Certificates
representing not less than 50% of the Certificate Percentage Interests), in each
case in the same manner as Owner Trustee or Indenture Trustee or such Holders
may terminate the rights and obligations of Servicer under Section 8.1. The
Indenture Trustee, or, if no Notes are then Outstanding, the Owner Trustee at
the direction of Holders of Certificates evidencing not less than 50% of the
Certificate Percentage Interests, may terminate Servicer's appointment as
Custodian hereunder at any time with cause. As soon as practicable after any
termination of such appointment Servicer shall deliver, or cause to be
delivered, the Receivable Files to Indenture Trustee or Owner Trustee, as
applicable, or its respective agent or designee at such place or places as
Indenture Trustee or Owner Trustee, as applicable, may reasonably designate.
Notwithstanding any termination of Servicer as Custodian hereunder (other than
in connection with a termination resulting from the termination of Servicer, as
such, pursuant to Section 8.1), from and after the date of such termination, and
for so long as Servicer is acting as such pursuant to this Agreement, Indenture
Trustee shall provide, or cause the successor Custodian to provide, access to
the Receivable Files to Servicer, at such times as Servicer shall reasonably
request, for the purpose of carrying out its duties and responsibilities with
respect to the servicing of the Receivables hereunder.
(i) Delegation. Custodian may, at any time without notice or consent,
delegate any or all of its duties under the Basic Documents to any Affiliate;
provided that no such delegation shall relieve Custodian of its responsibility
with respect to such duties and Custodian shall
2000-1 SALE AND SERVICING AGREEMENT
7
remain obligated and liable to Issuer and the Holders for its duties hereunder
as if Custodian alone were performing such duties.
ARTICLE IV. ADMINISTRATION AND SERVICING OF RECEIVABLES.
SECTION 4.1. Duties of Servicer. (a) Servicer is hereby authorized to act
as agent for Issuer and in such capacity shall manage, service, administer and
make collections on the Receivables (other than Purchased Receivables), and
perform the other actions required by Servicer under this Agreement, with
reasonable care. Without limiting the standard set forth in the preceding
sentence, Servicer shall use a degree of skill, attention and care that is not
less than Servicer exercises with respect to comparable Motor Vehicle Loans that
it services for itself or others and that is consistent with prudent industry
standards. Servicer's duties shall include the collection and posting of all
payments, responding to inquiries by Obligors on the Receivables, or by federal,
state or local governmental authorities, investigating delinquencies, sending
payment coupons or monthly invoices to Obligors, reporting required tax
information to Obligors, accounting for Collections, furnishing monthly and
annual statements to Owner Trustee and Indenture Trustee with respect to
distributions, providing collection and repossession services in the event of
Obligor default and performing the other duties specified herein.
Without limiting the generality of the foregoing, Servicer is hereby
authorized and empowered by Issuer to execute and deliver, on behalf of itself,
Indenture Trustee, Issuer, Owner Trustee and the Holders, any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and all other comparable instruments, with respect to the Receivables
or to the Financed Vehicles, all in accordance with this Agreement; provided
that notwithstanding the foregoing, Servicer shall not, except pursuant to an
order from a court of competent jurisdiction, release an Obligor from payment of
any unpaid amount under any Receivable or waive the right to collect the unpaid
balance of any Receivable from the Obligor, except in connection with a de
minimis deficiency which Servicer would not attempt to collect in accordance
with its customary procedures. If Servicer shall commence a legal proceeding to
enforce a Receivable, Issuer shall thereupon be deemed to have automatically
assigned such Receivable to Servicer, which assignment shall be solely for
purposes of collection. Owner Trustee shall furnish Servicer with any powers of
attorney and other documents or instruments necessary or appropriate to enable
Servicer to carry out its servicing and administrative duties hereunder.
(b) Servicer may, at any time without notice (except that Servicer shall
give written notice to each Rating Agency, the Indenture Trustee and the Owner
Trustee of any delegation outside the ordinary course of business or of a
substantial portion of its servicing business) or consent, delegate (i) any or
all duties under this Agreement to any Person that is an Affiliate of the
Servicer, so long as AmSouth Bank acts as Servicer, or (ii) specific duties to
sub-contractors who are in the business of performing such duties; provided that
no such delegation shall relieve Servicer of its responsibility with respect to
such duties and Servicer shall remain obligated and liable to Issuer, the
Indenture Trustee, the Owner Trustee and the Holders for servicing and
2000-1 Sale and Servicing Agreement
8
administering the Receivables in accordance with this Agreement as if Servicer
alone were performing such duties.
(c) The Servicer shall pay the Administrator the fee pursuant to the
Administration Agreement.
SECTION 4.2. Collection of Receivable Payments. (a) Servicer shall make
reasonable efforts to collect all payments called for under the terms and
provisions of the Receivables as and when the same shall become due, and
otherwise act with respect to the Receivables, the Physical Damage Insurance
Policies, the Dealer Agreements and related property in such manner as will, in
the reasonable judgment of Servicer, maximize the amount to be received by
Issuer with respect thereto, in accordance with the standard of care required by
Section 4.1. Servicer shall be entitled to grant extensions, rebates or
adjustments on a Receivable, or amend or modify any Receivable in accordance
with its customary procedures if Servicer believes in good faith that such
amendment or modification is in Issuer's best interests; provided that Servicer
may not, unless ordered by a court of competent jurisdiction or otherwise
required by applicable law, (i) extend a Receivable beyond August 30, 2006 or
(ii) reduce the Principal Balance or Contract Rate of any Receivable. If
Servicer fails to comply with the provisions of the preceding sentence, Servicer
shall be required to purchase the Receivable or Receivables affected thereby,
for the Purchase Amount, in the manner specified in Section 4.7 as of the last
day of the Collection Period in which such failure occurs. Servicer may, in its
discretion (in accordance with its customary standards, policies and
procedures), waive any prepayment charge, late payment charge, extension fee or
any other fee that may be collected in the ordinary course of servicing a
Receivable.
(b) If in the course of collecting payments under the Receivables,
Servicer determines to set off any obligation of Servicer to an Obligor against
an amount payable by the Obligor with respect to such Receivable, Servicer shall
deposit the amount so set off in the Collection Account, no later than the close
of business on the Deposit Date for the Collection Period in which the set-off
occurs. All references herein to payments or Liquidation Proceeds collected by
Servicer shall include amounts set-off by Servicer.
SECTION 4.3. Realization upon Receivables. On behalf of Issuer, Servicer
shall charge off a Receivable in accordance with its customary standards (and,
in no event later than 120 days after a Receivable shall have become delinquent)
and shall use reasonable efforts, consistent with its customary standards, to
repossess and liquidate the Financed Vehicle securing any Defaulted Receivable
as soon as feasible after such Receivable becomes a Defaulted Receivable, in
accordance with the standard of care required by Section 4.1. In taking such
action, Servicer shall follow such customary and usual practices and procedures
as it shall deem necessary or advisable in its servicing of Motor Vehicle Loans,
and as are otherwise consistent with the standard of care required under Section
4.1, which shall include exercising any rights under the Dealer Agreements and
selling the Financed Vehicle at public or private sale. Servicer shall be
entitled to recover all reasonable expenses incurred by it in the course of
repossessing and liquidating a Financed Vehicle into cash proceeds or pursuing
any deficiency claim against the
2000-1 Sale and Servicing Agreement
9
related Obligor, but only out of the cash proceeds of such Financed Vehicle or
any deficiency obtained from the Obligor. The foregoing shall be subject to the
provision that, in any case in which a Financed Vehicle shall have suffered
damage, Servicer shall not expend funds in connection with the repair or the
repossession of such Financed Vehicle unless it shall determine in its
discretion that such repair and/or repossession will increase the Liquidation
Proceeds of the related Receivable by an amount equal to or greater than the
amount of such expenses.
If Servicer elects to commence a legal proceeding to enforce a Dealer
Agreement, the act of commencement shall be deemed to be an automatic assignment
from Issuer to Servicer of the rights under such Dealer Agreement. If, however,
in any enforcement suit or legal proceeding, it is held that Servicer may not
enforce a Dealer Agreement on the grounds that it is not a real party in
interest or a Person entitled to enforce the Dealer Agreement, Owner Trustee, on
behalf of Issuer and the Indenture Trustee, subject to the Indenture, at
Servicer's expense, or Seller, at Servicer's expense, shall take such steps as
Servicer deems necessary to enforce the Dealer Agreement, including bringing
suit in Issuer's name or the name of Owner Trustee or Indenture Trustee.
SECTION 4.4 Physical Damage Insurance. (a) The Receivables require that
each Financed Vehicle be insured under a Physical Damage Insurance Policy. If
Servicer receives notice that an Obligor has failed to obtain or maintain a
Physical Damage Insurance Policy covering the related Financed Vehicle, Servicer
shall use reasonable efforts in accordance with its customary servicing
procedures to enforce the rights of the holder of the Receivable under the
Receivable to require the Obligor to obtain such physical damage insurance,
provided that Servicer shall not be required to take such actions if there is in
place a lender's single interest policy with respect to the related Financed
Vehicle that complies with Servicer's customary requirements. It is understood
that Servicer will not "force-place" any Physical Damage Insurance Policy on any
Financed Vehicle.
(b) Servicer may xxx to enforce or collect upon the Physical Damage
Insurance Policies, in its own name, if possible, or as agent for Issuer. If
Servicer elects to commence a legal proceeding to enforce a Physical Damage
Insurance Policy, the act of commencement shall be deemed to be an automatic
assignment of the rights of Issuer under such Physical Damage Insurance Policy
to Servicer for purposes of collection only. If, however, in any enforcement
suit or legal proceeding it is held that Servicer may not enforce a Physical
Damage Insurance Policy on the grounds that it is not a real party in interest
or a holder entitled to enforce the Physical Damage Insurance Policy, Owner
Trustee, on behalf of Issuer and the Indenture Trustee, subject to the
Indenture, at Servicer's expense and written direction, or Seller, at Servicer's
expense, shall take such steps as Servicer deems necessary to enforce such
Physical Damage Insurance Policy, including bringing suit in Issuer's name or
the name of Owner Trustee or Indenture Trustee. Servicer shall make all claims
and enforce its rights under any lender's single interest insurance policy (to
the extent such claims or rights relate to Receivables) for the benefit of the
Issuer and shall treat as Collections all related proceeds of such policies.
2000-1 Sale and Servicing Agreement
10
SECTION 4.5 Maintenance of Security Interests in Financed Vehicles.
Servicer, in accordance with the standard of care required under Section 4.1,
shall take such reasonable steps as are necessary and as are consistent with its
customary business practices to maintain perfection of the security interest
created by each Receivable in the related Financed Vehicle for the benefit of
Issuer and the Indenture Trustee. Issuer hereby authorizes Servicer, and
Servicer hereby agrees, to take such reasonable steps as are necessary and as
are consistent with its customary business practices to re-perfect such security
interest on behalf of Issuer in the event Servicer receives notice of the
relocation of a Financed Vehicle.
SECTION 4.6 Covenants of Servicer. Servicer makes the following covenants
on which Issuer relies in acquiring the Receivables:
(a) Security Interest to Remain in Force. Servicer shall not release any
Financed Vehicle from the security interest granted by the related Receivable in
whole or in part, except upon payment in full of the Receivable or as otherwise
contemplated herein.
(b) No Impairment. Servicer shall not impair in any material respect the
rights of the Issuer or the Holders in the Receivables, the Dealer Agreements or
the Physical Damage Insurance Policies or, subject to clause (c), otherwise
amend or alter the terms thereof if, as a result of such amendment or
alteration, the interests of Issuer and the Holders hereunder would be
materially adversely affected.
(c) Amendments. Servicer shall not amend or otherwise modify any
Receivable (including the grant of any extension thereunder), except in
accordance with Section 4.2.
SECTION 4.7 Purchase by Servicer upon Breach. Seller, Servicer, Indenture
Trustee or Owner Trustee, as the case may be, shall inform the other parties
promptly, in writing, upon the discovery (or, in the case of the Indenture
Trustee or Owner Trustee, upon actual knowledge of a Responsible Officer) of any
breach by Servicer of its covenants under Section 4.5 or 4.6; provided that the
failure to give such notice shall not affect any obligation of Servicer. Unless
the breach shall have been cured by the last day of the Collection Period which
includes the 60th day (or the 30th day, if Servicer so elects) after the date on
which Servicer becomes aware of, or receives written notice of, such breach, and
such breach materially and adversely affects the interests of Issuer and the
Holders in any Receivable, Servicer shall purchase such Receivable from Issuer
as of the last day of the Collection Period at a purchase price equal to the
Purchase Amount for such Receivable as of the last day of such Collection
Period; provided that in the case of a breach of the covenant contained in
Section 4.6(c), Servicer shall be obligated to purchase the affected Receivable
or Receivables on the Business Day preceding the Deposit Date immediately
succeeding the Collection Period during which Servicer becomes aware of, or
receives written notice of, such breach. In consideration of the purchase of a
Receivable hereunder, Servicer shall remit the Purchase Amount of such
Receivable in the manner specified in Section 5.4. The sole remedy (except as
provided in Section 7.2) of Issuer, Owner Trustee, Indenture Trustee or the
Holders against Servicer with respect to a breach pursuant to Section 4.5 or 4.6
shall be to require Servicer to repurchase Receivables pursuant to this Section.
2000-1 Sale and Servicing Agreement
11
With respect to all Receivables purchase pursuant to this Section 4.7,
Issuer shall assign to Servicer, without recourse, representation or warranty,
all of Issuer's right, title and interest in and to such Receivables and all
security and documents relating thereto.
SECTION 4.8. Servicing Fee. The servicing fee for each Distribution Date
shall equal the product of (i) one-twelfth, (ii the Servicing Fee Rate and (ii
the Pool Balance as of the opening of business on the first day of the related
Collection Period (the "Servicing Fee"). Servicer shall also be entitled to
retain any late fees, extension fees, prepayment charges and certain non-
sufficient funds charges and other administrative fees or similar charges
allowed by applicable law with respect to Receivables collected (from whatever
source) on the Receivables and shall be paid any interest earned on deposits in
the Trust Accounts and Certificate Distribution Account (the "Supplemental
Servicing Fee"). It is understood and agreed that Available Collections shall
not include any amounts retained by Servicer which constitute Supplemental
Servicing Fees. The Servicing Fee in respect of a Collection Period (together
with any portion of the Servicing Fee that remains unpaid from prior
Distribution Dates), if the Rating Agency Condition is satisfied, may be paid at
the beginning of such Collection Period out of Collections for such Collection
Period.
SECTION 4.9. Servicer's Report. (a) On each Determination Date, Servicer
shall deliver to Owner Trustee, Indenture Trustee, each Paying Agent and Seller,
with a copy to the Rating Agencies, a Servicer's Report substantially in the
form of Exhibit A, containing all information necessary to make the transfers
and distributions pursuant to Sections 5.4 and 5.5 (including amounts required
to be transferred from the Reserve Account to the Collection Account) for the
Collection Period preceding the date of such Servicer's Report together with all
information necessary for the Owner Trustee to send statements to
Certificateholders pursuant to Section 5.6 and Indenture Trustee to send copies
of statements received by the Indenture Trustee to Noteholders pursuant to the
Indenture and Section 5.6 of this Agreement. Receivables to be purchased by
Servicer or to be repurchased by AmSouth Bank shall be identified by Servicer by
account number with respect to such Receivable (as specified in the Schedule of
Receivables).
(b) Servicer shall provide Indenture Trustee with a database file for the
Receivables at or prior to the Closing Date (but with information as of the
close of business on the Cutoff Date).
SECTION 4.10. Annual Statement as to Compliance; Notice of Default. (a)
Servicer shall deliver to Owner Trustee, Indenture Trustee and each Rating
Agency, on or before April 30 of each year beginning on April 30, 2001, an
Officer's Certificate, dated as of December 31 of the preceding year, stating
that (i) a review of the activities of Servicer during the preceding 12-month
period (or, in the case of the first such report, during the period from the
Closing Date to April 30, 2001) and of its performance under this Agreement has
been made under such officer's supervision and (ii to the best of such officer's
knowledge, based on such review, Servicer has fulfilled all its obligations in
all material respects under this Agreement throughout such year or, if there
exists any uncured default in the fulfillment of any such obligation, specifying
each such default known to such officer and the nature and status thereof. A
copy of such certificate and
2000-1 SALE AND SERVICING AGREEMENT
12
the report referred to in Section 4.11 may be obtained by any Noteholder by a
request in writing to Indenture Trustee addressed to the Corporate Trust Office.
(b) Servicer shall deliver to Owner Trustee, Indenture Trustee and the
Rating Agencies, promptly after having obtained knowledge thereof, but in no
event later than five (5) Business Days thereafter, written notice in an
Officer's Certificate of any event which constitutes, or with the giving of
notice or lapse of time, or both, would become a Servicer Termination Event
under Section 8.1.
SECTION 4.1. Annual Independent Certified Public Accountants' Report. The
Servicer shall cause a firm of independent certified public accountants (who may
also render other services to the Servicer or Seller) to deliver to the Seller,
Owner Trustee, Indenture Trustee and each Rating Agency on or before April 30 of
each year beginning on April 30, 2002, a report to the effect that, as to
objectively determinable matters, such firm has examined the Servicer's
assertion that it has fulfilled its obligations in all material respects under
this Agreement for the twelve months ended December 31 of the preceding year
(or, in the case of the first such certificate, from the Closing Date until
December 31, 2001) set forth in the Officer's Certificate delivered pursuant to
Section 4.10(a), and that (1) such examination was made in accordance with the
standards established by the American Institute of Certified Public Accountants,
(2) except as described in the report, the assertions in the Officer's
Certificate are, as to objectively determinable matters, fairly stated in all
material respects and (3) that the firm is independent of Servicer within the
meaning of the Code of Professional Ethics of the American Institute of
Certified Public Accountants.
In the event such firm requires the Indenture Trustee or Owner Trustee to
agree to the procedures performed by such firm, Servicer shall direct the
Indenture Trustee or Owner Trustee, as the case may be, in writing to so agree;
it being understood and agreed that the Indenture Trustee or Owner Trustee, as
the case may be, will deliver such letter of agreement in conclusive reliance
upon the direction of Servicer, and the Indenture Trustee or Owner Trustee, as
the case may be, need not make any independent inquiry or investigation as to,
and shall have no obligation or liability in respect of, the sufficiency,
validity or correctness of such procedures.
SECTION 4.12. Access to Certain Documentation and Information Regarding
Receivables. Servicer shall provide to the Owner Trustee, Indenture Trustee,
Certificateholders, Noteholders, Bank Regulatory Authorities, and the
supervisory agents and examiners of Bank Regulatory Authorities access to the
Receivable Files, as to the latter in such cases where the Certificateholders,
Noteholders or Bank Regulatory Authorities shall be required by applicable
statutes or regulations to review such documentation as demonstrated by evidence
satisfactory to Servicer in its reasonable judgment. Access shall be afforded
without charge, but only upon reasonable request and during the normal business
hours at the respective offices of Servicer. Nothing in this Section shall
affect the obligation of Servicer to observe any applicable law prohibiting
disclosure of information regarding the Obligors and the failure of Servicer to
provide access to information as a result of such obligation shall not
constitute a breach of this Section. Any Holder, by its acceptance of a
Certificate or Note, as applicable, shall be deemed to
2000-1 SALE AND SERVICING AGREEMENT
13
have agreed to keep any information obtained by it pursuant to this Section
confidential and not to use such information for any other purpose, except as
required by applicable law.
SECTION 4.13. Reports to the Commission. Servicer shall, on behalf of the
Issuer, cause to be filed with the Commission any periodic reports required to
be filed under the provisions of the Exchange Act, and the rules and regulations
of the Commission thereunder. Seller shall, at its expense, cooperate in any
reasonable request made by Servicer in connection with such filings.
SECTION 4.14. Reports to the Rating Agencies. Servicer shall deliver to
each Rating Agency a copy of all reports or notices furnished or delivered
pursuant to this Article and a copy of any amendments, supplements or
modifications to this Agreement and any other information reasonably requested
by such Rating Agency to monitor this transaction.
SECTION 4.15. Servicer Expenses. Except as otherwise provided herein,
Servicer shall be required to pay all expenses incurred by it in connection with
its activities hereunder, including fees and disbursements of the Owner Trustee,
Indenture Trustee, independent accountants, taxes imposed on Servicer and
expenses incurred in connection with distributions and reports to
Certificateholders and Noteholders.
ARTICLE V. DISTRIBUTIONS; RESERVE ACCOUNT;
STATEMENTS TO CERTIFICATEHOLDERS
AND NOTEHOLDERS.
SECTION 5.1. Establishment of Collection Account. (a) Servicer shall cause
to be established:
(i) For the benefit of the Noteholders and the Certificateholders,
in the name of Indenture Trustee, an Eligible Deposit Account (the
"Collection Account"), bearing a designation clearly indicating that the
funds deposited therein are held for the benefit of the Noteholders and the
Certificateholders, which Eligible Deposit Account shall be established and
maintained with the Indenture Trustee or its designee..
(ii) For the benefit of the Noteholders, in the name of Indenture
Trustee, an Eligible Deposit Account (the "Note Distribution Account"),
bearing a designation clearly indicating that the funds deposited therein
are held for the benefit of the Noteholders, which Eligible Deposit Account
shall be established and maintained with the Indenture Trustee or its
designee.
(iii) An administrative subaccount within the Note Distribution
Account at the Eligible Institution then maintaining the Note Distribution
Account, which subaccount shall be designated the "Interest Distribution
Account". The Interest Distribution Account is established and maintained
solely for administrative purposes.
2000-1 SALE AND SERVICING AGREEMENT
14
(iv) An administrative subaccount within the Note Distribution
Account at the Eligible Institution then maintaining the Note Distribution
Account, which subaccount shall be designated the "Principal Distribution
Account". The Principal Distribution Account is established and maintained
solely for administrative purposes.
(v) For the benefit of the Seller and Xxxxxxx, Xxxxx & Co. in the
name of Indenture Trustee, an Eligible Deposit Account (the "Funding
Account"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Seller and Xxxxxxx, Sachs
& Co. On the Closing Date, Xxxxxxx, Xxxxx & Co. will deposit
$929,851,078.92 into the Funding Account. The Seller hereby directs the
Indenture Trustee to cause the Notes to be transferred to Xxxxxxx, Sachs &
Co. on the book entry system of The Depository Trust Company on the Closing
Date. Immediately after the Notes are transferred to Xxxxxxx, Xxxxx & Co.
pursuant to the preceding sentence, the Indenture Trustee shall wire all of
the amounts on deposit in the Funding Account, in immediately available
funds, to the Seller pursuant to written wiring instructions of the Seller.
Notwithstanding the foregoing, if the Indenture Trustee does not cause the
Notes to be transferred to Xxxxxxx, Sachs & Co. on the book entry system of
The Depository Trust Company by 2:00 New York time on the Closing Date, the
Indenture Trustee shall wire all of the amounts on deposit in the Funding
Account, in immediately available funds, to Xxxxxxx, Xxxxx & Co., pursuant
to written instructions of Xxxxxxx, Sachs & Co.
(b) Funds on deposit in the Collection Account and the Note Distribution
Account (collectively, the "Trust Accounts") shall be invested by Indenture
Trustee with respect to the Trust Accounts and by Owner Trustee with respect to
the Certificate Distribution Account (or any custodian with respect to funds on
deposit in any such account) in Eligible Investments selected in writing by
Servicer and of which Servicer provides notification (pursuant to standing
instructions or otherwise); provided that it is understood and agreed that
neither Servicer, Indenture Trustee nor Owner Trustee shall be liable for any
loss arising from such investment in Eligible Investments. All such Eligible
Investments shall be held by or on behalf of Indenture Trustee for the benefit
of the Noteholders and the Certificateholders or by Owner Trustee for the
benefit of Certificateholders, as applicable; provided that on each Distribution
Date all interest and other investment income (net of losses and investment
expenses) (other than from the Deposit Date to the Distribution Date) on funds
on deposit in the Trust Accounts shall be distributed to Servicer and all
interest and other investment income (net of losses and investment expenses)
from the Deposit Date to the Distribution Date on funds on deposit in the Trust
Accounts shall be distributed to the Indenture Trustee, and in each case shall
not be available to pay the distributions provided for in Section 5.5 and shall
not otherwise be subject to any claims or rights of Holders. Funds on deposit
in the Trust Accounts shall be invested in Eligible Investments that will mature
so that such funds will be available at the close of business on the Deposit
Date preceding the next Distribution Date; provided that upon satisfaction of
the Rating Agency Condition and with the approval of the Indenture Trustee,
funds on deposit in the Trust Accounts may be invested in Eligible Investments
that mature on such Distribution Date. No Eligible Investment shall be sold or
otherwise disposed of prior to its scheduled maturity unless a
2000-1 SALE AND SERVICING AGREEMENT
15
default occurs with respect to such Eligible Investment and Servicer directs
Indenture Trustee in writing to dispose of such Eligible Investment. Funds
deposited in the Trust Accounts or Certificate Distribution Account on a Deposit
Date shall be invested overnight.
(c) Indenture Trustee shall possess all right, title and interest in all
funds on deposit from time to time in the Trust Accounts and in all proceeds
thereof (excluding investment income thereon) and all such funds, investments
and proceeds shall be part of the Owner Trust Estate. Except as otherwise
provided herein, the Trust Accounts shall be under the sole dominion and control
of Indenture Trustee for the benefit of the Noteholders and the
Certificateholders; provided, however, the Indenture Trustee shall not be
charged with any obligation for the benefit of the Certificateholders except as
provided by the terms of this Agreement. If, at any time, any of the Trust
Accounts or the Certificate Distribution Account ceases to be an Eligible
Deposit Account, the Servicer or Owner Trustee, as applicable, shall within 10
Business Days (or such longer period as to which each Rating Agency may consent)
establish a new Trust Account or Certificate Distribution Account, as
applicable, as an Eligible Deposit Account and shall transfer any cash and/or
any investments to such new Trust Account or new Certificate Distribution
Account, as applicable. In connection with the foregoing, Servicer agrees that,
in the event that the Collection Account is not an account with Indenture
Trustee or its designee, Servicer shall notify Indenture Trustee in writing
promptly upon the Collection Account ceasing to be an Eligible Deposit Account.
(d) With respect to the Trust Account Property, Servicer and the Indenture
Trustee agree that:
(i) any Trust Account Property that is held in deposit accounts
shall be held solely in the Eligible Deposit Accounts and, except as
otherwise provided herein, each such Eligible Deposit Account shall be
subject to the exclusive custody and control of Indenture Trustee, and,
except as otherwise provided in the Basic Documents, Indenture Trustee and
its designee shall have sole signature authority with respect thereto;
(ii) any Trust Account Property that constitutes Physical Property
shall be delivered to Indenture Trustee or its designee, in accordance with
paragraph (a) of the definition of "Delivery" and shall be held, pending
maturity or disposition, solely by Indenture Trustee or such designee, or a
financial intermediary (as such term is defined in Section 8-313(4) of the
UCC) acting solely for Indenture Trustee or such designee;
(iii) any Trust Account Property that is a book-entry security held
through the Federal Reserve System pursuant to Federal book-entry
regulations shall be delivered in accordance with paragraph (b) of the
definition of "Delivery" and shall be maintained by Indenture Trustee or
its designee or a financial intermediary (as such term is defined in
Section 8-313(4) of the UCC) acting solely for Indenture Trustee or such
designee, pending maturity or disposition, through continued book-entry
registration of such Trust Account Property as described in such paragraph;
and
2000-1 SALE AND SERVICING AGREEMENT
16
(iv) any Trust Account Property that is an "uncertificated security"
under Article 8 of the UCC and that is not governed by clause (iii) above
shall be delivered to Indenture Trustee or its designee in accordance with
paragraph (c) of the definition of "Delivery" and shall be maintained by
Indenture Trustee or such designee, or a financial intermediary (as such
term is defined in Section 8-313(4) of the UCC) acting solely for Indenture
Trustee or such designee, pending maturity or disposition, through
continued registration of Indenture Trustee's (or its designee's) ownership
of such security.
Effective upon Delivery of any Trust Account Property, Servicer shall be deemed
to have represented that it has purchased such Trust Account Property for value,
in good faith and without notice of any adverse claim thereto.
SECTION 5.2. Collections. (a) Servicer shall remit within two Business
Days of receipt thereof to the Collection Account all payments by or on behalf
of the Obligors with respect to the Receivables (other than any amounts
constituting Supplemental Servicing Fees) and all Liquidation Proceeds, both as
collected during the Collection Period. Notwithstanding the foregoing, if
AmSouth Bank is the Servicer and (i) shall have the Required Rating or (ii)
Indenture Trustee otherwise shall have received written notice from each of the
Rating Agencies that the then outstanding rating on the Notes would not be
lowered, qualified or withdrawn as a result, Servicer may deposit all amounts
referred to above for any Collection Period into the Collection Account not
later than 11:00 a.m. (New York time) on the Deposit Date with respect to such
Collection Period; provided that (i) if a Servicer Termination Event has
occurred and is continuing, (ii) Servicer has been terminated as such pursuant
to Section 8.1 or (iii) Servicer ceases to have the Required Rating, Servicer
shall deposit such amounts (including any amounts then being held by Servicer)
into the Collection Account as provided in the preceding sentence. For purposes
of this Article V the phrase "payments by or on behalf of Obligors" shall mean
payments made with respect to the Receivables by Persons other than Servicer,
Seller or any Affiliate.
(b) With respect to each Receivable (other than a Purchased Receivable),
collections and payments by or on behalf of the Obligor (other than any amounts
constituting Supplemental Servicing Fees) for each Collection Period shall be
applied to interest and principal in accordance with the Simple Interest Method,
as applied by Servicer. Any excess shall be applied to prepay the Receivable.
SECTION 5.3. [Reserved].
SECTION 5.4. Additional Deposits. Servicer and Seller shall deposit or
cause to be deposited in the Collection Account the aggregate Purchase Amounts
with respect to Purchased Receivables and Servicer shall deposit therein all
amounts, if any, to be paid under Section 9.1. All such deposits shall be made
not later than the 11:00 a.m. (New York time) on the Deposit Date following the
end of the related Collection Period.
2000-1 SALE AND SERVICING AGREEMENT
17
SECTION 5.5. Distributions. (a) On or before 11:00 a.m. (New York time) on
the Business Day immediately preceding the Deposit Date related to each
Distribution Date, Servicer shall instruct Indenture Trustee in writing (based
on the information contained in the Servicer's Report delivered on the related
Determination Date pursuant to Section 4.9) to withdraw from the Reserve Account
and deposit in the Collection Account, and Indenture Trustee shall so withdraw
and deposit in the Collection Account by 11:00 a.m. (New York time) on such
Deposit Date, the Reserve Account Excess Amount, if any, and the Reserve Account
Transfer Amount, if any, for such Distribution Date.
(b) Subject to the last paragraph of this Section 5.5(b), on or before
11:00 a.m. (New York time) on the Business Day immediately preceding the Deposit
Date related to each Distribution Date, Servicer shall instruct Indenture
Trustee in writing (based on the information contained in the Servicer's Report
delivered on the related Determination Date pursuant to Section 4.9) to make,
and Indenture Trustee shall make, the following deposits, distributions and
payments from the Collection Account by 11:00 a.m. (New York time) on such
Distribution Date, to the extent of the Total Distribution Amount in the
following order of priority:
(i) first, to the Servicer, the Servicing Fee and all unpaid
Servicing Fees from prior Collection Periods;
(ii) second, to the Interest Distribution Account, the Accrued Class
A Note Interest;
(iii) third, to the Principal Distribution Account, the First
Priority Principal Distribution Amount, if any;
(iv) fourth, to the Interest Distribution Account, the Accrued Class
B Note Interest;
(v) fifth, to the Principal Distribution Account, the Second
Priority Principal Distribution Amount, if any;
(vi) sixth, to the Interest Distribution Account, the Accrued Class C
Note Interest;
(vii) seventh, to the Reserve Account, the amount, if any, required
to reinstate the amount in the Reserve Account up to the Specified Reserve
Account Balance;
(viii) eighth, to the Principal Distribution Account, the Regular
Principal Distribution Amount, if any; and
(ix) ninth, to the Certificate Distribution Account, the Total
Distribution Amount remaining on deposit in the Collection Account.
2000-1 SALE AND SERVICING AGREEMENT
18
Notwithstanding any other provision of this Section 5.5, following the
occurrence and during the continuation of an Event of Default specified in
Section 5.1(a), 5.1(b), 5.1(d) or 5.1(e) of the Indenture which has resulted in
an acceleration of the Notes (or following the occurrence of any such event
after an Event of Default specified in Section 5.1(c) of the Indenture has
occurred and the Trust has been liquidated), the Servicer shall instruct the
Indenture Trustee at or before aforesaid time to transfer the funds on deposit
in the Collection Account pursuant to Section 5.4(b) of the Indenture.
In the event that the Collection Account is maintained with an institution
other than Indenture Trustee, Servicer shall instruct and cause such institution
to make all deposits and distributions pursuant to this Section 5.5(b) on the
related Deposit Date.
(c) Indenture Trustee shall continue to perform its duties under this
Agreement after the Outstanding Amount of the Notes has been reduced to zero and
the Indenture has been discharged in accordance with its terms. The
protections, immunities and standard of care afforded the Indenture Trustee
under the Indenture shall apply to the performance of its duties hereunder.
SECTION 5.6. Statements to Certificateholders and Noteholders. On each
Determination Date, Servicer shall provide to Indenture Trustee (with a copy to
each Rating Agency) written instructions for Indenture Trustee to forward to
each Noteholder of record, to each Paying Agent, if any, and to Owner Trustee
for Owner Trustee to forward to each Certificateholder of record, a statement
substantially in the form of Exhibit B setting forth at least the following
information (based on the information contained in the Servicer's Report
delivered on the related Determination Date pursuant to Section 4.9) as to the
Notes and the Certificates to the extent applicable:
(a) the amount of such distribution allocable to principal of each class of
Notes;
(b) the amount of such distribution allocable to interest on or with
respect to each class of Notes;
(c) the Reserve Account Transfer Amount, if any, for such Distribution
Date, the Specified Reserve Account Balance for such Distribution Date, the
amount deposited into the Reserve Account on such Distribution Date, and the
balance of the Reserve Account (if any) on such Distribution Date, after giving
effect to changes therein on such Distribution Date;
(d) the Specified Overcollateralization Amount and the Specified Credit
Enhancement Amount as of such Distribution Date;
(e) the amount of the Servicing Fee paid to Servicer with respect to the
related Collection Period and with respect to previously accrued and unpaid
Servicing Fees;
2000-1 SALE AND SERVICING AGREEMENT
19
(f) the Noteholders' Interest Carryover Shortfall if any, in each case as
applicable to each class of Securities, and the change in such amounts from the
preceding statement;
(g) the amount of any previously due and unpaid payment of principal on
the Notes, and the change in such amount from that of the prior Distribution
Date;
(h) the aggregate outstanding principal balance of each class of the Notes
and the Note Pool Factor for each such class after giving effect to payments
allocated to principal reported under clause (a) above;
(i) the aggregate Purchase Amounts paid by Seller or Servicer with respect
to the related Collection Period;
(j) the Pool Balance as of the close of business on the last day of the
preceding Collection Period;
(k) the number, and aggregate Principal Balance outstanding, of
Receivables past due 30-59, 60-89 and 90 and over days;
(l) the weighted average Contract Rates of the Receivables, weighted based
on the Principal Balance of each such Receivable as of the last day of the
related Collection Period;
(m) the weighted average remaining term to maturity of the Receivables,
weighted based on the Principal Balance of each such Receivable as of the last
day of the related Collection Period;
(n) the amount of the aggregate Principal Balances of any Receivables that
became Defaulted Receivables, if any, during such Collection Period;
(o) the aggregate net losses on the Receivables incurred during the period
from the Cutoff Date to and including the last day of the related Collection
Period; and
(p) the amount distributed to Certificateholders.
Each amount set forth pursuant to paragraph (a), (b), (e) or (f) above relating
to the Notes shall be expressed as a dollar amount per $1,000 of the initial
principal balance of the Notes (or Class thereof).
SECTION 5.7. Net Deposits. As an administrative convenience, unless
Servicer is required to remit Collections within two Business Days of receipt
thereof, Servicer will be permitted to make the deposit of Collections and
Purchase Amounts for or with respect to the Collection Period net of
distributions to be made to Servicer with respect to the Collection Period.
Servicer, however, will account to Owner Trustee, Indenture Trustee, the
Noteholders and the Certificateholders as if all deposits, distributions and
transfers were made individually.
2000-1 SALE AND SERVICING AGREEMENT
20
SECTION 5.8. Reserve Account. (a) Seller shall establish and maintain in
the name of the Indenture Trustee, as secured party of AmSouth Auto Receivables
LLC and agent for the Issuer and the Noteholders, an Eligible Deposit Account
(the "Reserve Account"). The Reserve Account and any amounts therein shall not
be property of Issuer, but shall be pledged to the Indenture Trustee and held
for the benefit of the Noteholders and Certificateholders. The Reserve Account
shall be established and maintained with the Indenture Trustee or its designee
(the "Securities Intermediary"). On the Closing Date, Seller shall deposit or
cause to be deposited in the Reserve Account an amount equal to the Reserve
Account Deposit.
(b) In order to provide for the prompt payment to the Holders and to
assure availability of the amounts maintained in the Reserve Account:
(i) Seller, on behalf of itself and its successors and assigns, and
solely for the purpose of providing for payment of the distributions provided
for in Section 5.5, hereby grants a security interest in and pledges to
Indenture Trustee and its successors and assigns, as agent for the benefit of
the Issuer, the Noteholders and the Certificateholders, all of its right, title
and interest in and to the Reserve Account, subject, however, to the limitations
set forth in this Agreement, and all proceeds of the foregoing, including all
securities, investments, general intangibles, financial assets and investment
property from time to time credited to and any security entitlement to the
Reserve Account; and
(ii) Seller hereby grants a security interest and pledges to
Indenture Trustee and its successors and assigns as agent for the benefit of the
Issuer, the Noteholders and the Certificateholders, the Reserve Account Deposit
and all proceeds thereof; and solely for the purpose of providing for payment of
the distributions provided for in Section 5.5, (all of the foregoing, subject to
the limitations set forth in this Section, the "Reserve Account Property"), to
have and to hold all the aforesaid property, rights and privileges unto
Indenture Trustee, its successors and assigns, in trust for the uses and
purposes, and subject to the terms and provisions, set forth in this Section.
Indenture Trustee hereby acknowledges such transfer and accepts the trust
hereunder and shall hold and distribute the Reserve Account Property in
accordance with the terms and provisions of this Section.
(c) Indenture Trustee shall, at the written direction of Servicer, direct
the Securities Intermediary to invest funds on deposit in the Reserve Account in
Eligible Investments selected by Servicer and confirmed in writing by Servicer
to Indenture Trustee; provided that it is understood and agreed that none of
Indenture Trustee, Securities Intermediary, Servicer or Issuer shall be liable
for any loss arising from such investment in Eligible Investments. Funds on
deposit in the Reserve Account shall be invested in Eligible Investments that
will mature so that all such funds will be available at the close of business on
the Business Day preceding the next Deposit Date; provided that to the extent
permitted by the Rating Agencies following written request by Servicer, funds on
deposit in the Reserve Account may be invested in Eligible Investments that
mature later than such Deposit Date. Funds deposited in the Reserve Account on a
Deposit Date upon the maturity of any Eligible Investments are not required to
be (but may be) invested overnight.
2000-1 SALE AND SERVICING AGREEMENT
21
Seller will treat the funds, Eligible Investments and other assets in the
Reserve Account as its own for Federal, state and local income tax and franchise
tax purposes and will report on its tax returns all income, gain and loss from
the Reserve Account.
(d) The Securities Intermediary hereby expressly agrees with the Indenture
Trustee that: (i) all matters relating to the Reserve Account shall be governed
by the laws of the State of New York; (ii) all Eligible Investments held by the
Securities Intermediary on behalf of the Indenture Trustee in the Reserve
Account shall be treated as "financial assets" (as defined in Article 8 of the
New York Uniform Commercial Code; (iii) the Securities Intermediary will treat
the Indenture Trustee as entitled to exercise the rights comprising the
investments or financial assets credited to the Reserve Account; (iv) the
financial assets credited to the Reserve Account shall not be registered in the
name of, payable to the order of, or specially indorsed to the Indenture
Trustee; and (v) the Securities Intermediary will not agree to comply with
entitlement orders originated by any Person with respect to the investments or
financial assets held in the Reserve Account other than the Indenture Trustee.
(e) The Reserve Account shall be under the sole custody and control of
Indenture Trustee. If, at any time, the Reserve Account ceases to be an Eligible
Deposit Account, Seller shall within 10 Business Days (or such longer period,
not to exceed 30 calendar days, as to which each Rating Agency may consent)
establish a new Reserve Account as an Eligible Deposit Account and shall
transfer or cause to be transferred any cash and/or any investments that are in
the existing account which is no longer an Eligible Deposit Account to such new
Reserve Account.
(f) With respect to the Reserve Account Property, Seller, Issuer and the
Indenture Trustee agree that the Reserve Account Deposit and all other funds and
Reserve Account Property shall be delivered to Indenture Trustee or its designee
for credit to the Reserve Account. In addition:
(i) any Reserve Account Property that constitutes Physical Property
shall be delivered to Indenture Trustee or its designee in accordance with
paragraph (a) of the definition of "Delivery" and shall be held, pending
maturity or disposition, solely by Indenture Trustee or such designee or a
financial intermediary (as such term is defined in Section 8-313(4) of the
UCC) acting solely for Indenture Trustee or such designee;
(ii) any Reserve Account Property that is a book entry security held
through the Federal Reserve System pursuant to Federal book-entry
regulations shall be delivered in accordance with paragraph (b) of the
definition of "Delivery" and shall be maintained by Indenture Trustee or
its designee or a financial intermediary (as such term is defined in
Section 8-313(4) of the UCC) acting solely for Indenture Trustee or such
designee, pending maturity or disposition, through continued book entry
registration of such Reserve Account Property as described in such
paragraph; and
2000-1 SALE AND SERVICING AGREEMENT
22
(ii) any Reserve Account Property that is an "uncertificated
security" under Article 8 of the UCC and that is not governed by clause
(ii) above shall be delivered to Indenture Trustee or its designee in
accordance with paragraph (c) of the definition of "Delivery" and shall be
maintained by Indenture Trustee or such designee or a financial
intermediary (as such term is defined in Section 8-313(4) of the UCC)
acting solely for Indenture Trustee or such designee, pending maturity or
disposition, through continued registration of Indenture Trustee's (or its
designee's) ownership of such security.
Effective upon the crediting of any Reserve Account Property to the Reserve
Account, Servicer shall be deemed to have represented that it has purchased such
Reserve Account Property for value, in good faith and without notice of any
adverse claim thereto.
(g) Seller and Servicer agree to take or cause to be taken such further
actions, to execute, deliver and file or cause to be executed, delivered and
filed such further documents and instruments (including any UCC financing
statements or this Agreement) as may be determined to be necessary, in an
Opinion of Counsel to Seller delivered to Owner Trustee and Indenture Trustee in
order to perfect the interests created by this Section 5.8 and otherwise fully
to effectuate the purposes, terms and conditions of this Section 5.8. Seller and
Servicer shall:
(1) promptly execute, deliver and file any financing statements,
amendments, continuation statements, assignments, certificates and other
documents with respect to such interests and perform all such other acts as
may be necessary in order to perfect or to maintain the perfection of
Indenture Trustee's security interest; and
(2) make the necessary filings of financing statements or amendments
thereto within five days after the occurrence of any of the following: (1)
any change in their respective names or any trade names, (2) any change in
the location of their respective chief executive offices or principal
places of business and (3) any merger or consolidation or other change in
their respective identities or corporate structures; and shall promptly
notify Owner Trustee and Indenture Trustee of any such filings.
(h) Investment earnings attributable to the Reserve Account Property and
proceeds therefrom shall be held by Indenture Trustee in the Reserve Account and
will be available to pay the distributions provided for in Section 5.5.
ARTICLE VI. SELLER.
SECTION 6.1. Representations of Seller. Seller makes the following
representations on which Issuer is deemed to have relied in acquiring the
Receivables and the other properties and rights included in the Owner Trust
Estate and the Indenture Trustee is deemed to have relied in accepting
administration of its trusts. The representations speak as of the execution and
delivery of this Agreement and shall survive the sale of the Receivables to
Issuer and the pledge thereof to Indenture Trustee pursuant to the Indenture.
2000-1 SALE AND SERVICING AGREEMENT
23
(a) Organization and Good Standing. Seller has been duly organized and is
validly existing as a Delaware limited liability company in good standing under
the laws of the State of Delaware, 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,
full power, authority and legal right to acquire, own and sell the Receivables
and the other properties and rights included in the Owner Trust Estate assigned
to Issuer pursuant to Article II.
(b) Due Qualification. Seller is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary licenses
and approvals in all jurisdictions in which the ownership or lease of property
or the conduct of its business shall require such qualifications, except where
the failure to so obtain would not have a material adverse impact either on
Seller, the transactions contemplated in the Basic Documents or the Receivables.
(c) Power and Authority. Seller has the power, authority and legal right
to execute and deliver this Agreement and the Basic Documents to which it is a
party and to carry out their respective terms and to sell and assign the
property to be sold and assigned to and deposited with Issuer as the Owner Trust
Estate; and the execution, delivery and performance of this Agreement and the
Basic Documents to which it is a party have been duly authorized by Seller by
all necessary action.
(d) 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 Basic Documents to which it is
a party or the consummation of the transactions contemplated hereby or thereby,
other than (i) as may be required under the blue sky or securities laws of any
State or the Securities Act of 1933, as amended, and (ii) the filing of UCC
financing statements.
(e) Valid Sale; Binding Obligation. Seller intends this Agreement to
effect a valid sale, transfer, and assignment of the Receivables and the other
properties and rights included in the Owner Trust Estate conveyed by Seller to
Issuer hereunder, enforceable against creditors of and purchasers from Seller;
and each of this Agreement and the Basic Documents to which it is a party
constitutes a legal, valid and binding obligation of Seller, enforceable against
Seller in accordance with its respective 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.
(f) No Violation. The execution, delivery and performance by Seller of
this Agreement and the Basic Documents to which it is a party and the
consummation of the transactions contemplated hereby and thereby 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 limited liability company
agreement of Seller, (ii) any
2000-1 SALE AND SERVICING AGREEMENT
24
material indenture, contract, lease, mortgage, deed of trust or other instrument
or agreement to which Seller is a party or by which Seller is bound, or (iii)
any law, order, rule or regulation applicable to Seller of any federal or state
regulatory body, any court, administrative agency, or other governmental
instrumentality having jurisdiction over Seller.
(g) No Proceedings. There are no proceedings or investigations pending, or,
to the knowledge of Seller, threatened, before any court, regulatory body,
administrative agency, or other tribunal or governmental instrumentality having
jurisdiction over Seller or its properties: (i) asserting the invalidity of this
Agreement, any other Basic Document, the Notes or the Certificates, (ii) seeking
to prevent the issuance of the Notes or Certificates or the consummation of any
of the transactions contemplated by this Agreement or any other Basic Document,
(iii) seeking any determination or ruling that might materially and adversely
affect the performance by Seller of its obligations under, or the validity or
enforceability of, this Agreement, any other Basic Document, the Notes or the
Certificates, to the extent applicable, or (iv) that may materially and
adversely affect the federal or state income, excise franchise or similar tax
attributes of Issuer, the Notes or the Certificates.
(h) Chief Executive Office. The chief executive office of Seller is 0000
0xx Xxxxxx Xxxxx, XxXxxxx/XXXXX Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000.
SECTION 6.2. Continued Existence. During the term of this Agreement,
subject to Section 6.4, Seller will keep in full force and effect its existence,
rights and franchises as a limited liability company organized under the laws of
the State of Delaware and will obtain and preserve its qualification to do
business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement, the
Basic Documents and each other instrument or agreement necessary or appropriate
to the proper administration of this Agreement and the transactions contemplated
hereby.
SECTION 6.3. Liability of Seller; Indemnities. Subject to Section 10.5,
Seller shall be liable in accordance herewith only to the extent of the
obligations specifically undertaken by Seller under this Agreement.
(a) Seller shall indemnify, defend and hold harmless Issuer, Owner Trustee
(individually and in its capacity as such), Indenture Trustee (individually and
in its capacity as such), the Certificateholders and the Noteholders and the
respective officers, directors, employees and agents of 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) Seller's willful misfeasance, bad
faith or gross negligence (other than errors in judgment) in the performance of
its duties under this Agreement, or by reason of breach of contract or reckless
disregard of its obligations and duties under this Agreement or any other Basic
Document and (ii) Seller's violation of Federal or state securities laws in
connection with the offering and sale of the Notes and the Certificates or in
connection with any application relating to the Notes or Certificates under any
state securities laws.
2000-1 SALE AND SERVICING AGREEMENT
25
(b) Seller shall pay any and all taxes levied or assessed upon the Issuer
or upon all or any part of the Owner Trust Estate.
Indemnification under this Section shall survive the resignation or removal of
Owner Trustee or Indenture Trustee and the termination of this Agreement or any
other Basic Document, and shall include reasonable fees and expenses of counsel
and other expenses of litigation. If Seller 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 Seller, without interest.
SECTION 6.4. Merger or Consolidation of, or Assumption of the Obligations
of, Seller. Any Person (a) into which Seller may be merged or consolidated, (b)
which may result from any merger or consolidation to which Seller shall be a
party or (c) which may succeed to the properties and assets of Seller
substantially as a whole, shall be the successor to Seller without the execution
or filing of any document or any further act by any of the parties to this
Agreement; provided that Seller hereby covenants that it will not consummate any
of the foregoing transactions except upon satisfaction of the following: (i) the
surviving Seller if other than AmSouth Auto Receivables LLC, executes an
agreement of assumption to perform every obligation of Seller under this
Agreement, (ii) immediately after giving effect to such transaction, no
representation or warranty made pursuant to Section 3.1 or 6.1 shall have been
breached, (iii) Seller shall have delivered to Owner Trustee and Indenture
Trustee an Officer's Certificate and an Opinion of Counsel each stating that
such consolidation, merger or succession and such agreement of assumption comply
with this Section and that all conditions precedent, if any, provided for in
this Agreement relating to such transaction have been complied with, and that
the Rating Agency Condition shall have been satisfied with respect to such
transaction, (iv) the surviving Seller shall have a consolidated net worth at
least equal to that of the predecessor Seller, (v) such transaction will not
result in a material adverse federal or state tax consequence to Issuer, the
Noteholders or the Certificateholders and (vi) unless AmSouth Auto Receivables
LLC is the surviving entity, Seller shall have delivered to Owner Trustee and
Indenture Trustee an Opinion of Counsel either (A) stating that, in the opinion
of such counsel, all financing statements and continuation statements and
amendments thereto have been executed and filed that are necessary fully to
preserve and protect the interest of Owner Trustee and Indenture Trustee,
respectively, in the Receivables and reciting the details of such filings, or
(B) stating that, in the opinion of such counsel, no such action shall be
necessary to preserve and protect such interests.
SECTION 6.5. Limitation on Liability of Seller and Others. Seller and any
director or officer or employee or agent of Seller may rely in good faith on the
advice of counsel or on any document of any kind, prima facie properly executed
and submitted by any Person respecting any matters arising under any Basic
Document (provided that such reliance shall not limit in any way Seller's
obligations under Section 3.2 or 6.3). Seller shall not be under any obligation
to appear in, prosecute or defend any legal action that shall not be incidental
to its obligations under this Agreement, and that in its opinion may involve it
in any expense or liability.
2000-1 SALE AND SERVICING AGREEMENT
26
SECTION 6.6. Seller May Own Certificates or Notes. Seller and any
Affiliate thereof may in its individual or any other capacity become the owner
or pledgee of Certificates or Notes with the same rights as it would have if it
were not Seller or an Affiliate thereof, except as expressly provided herein or
in any Basic Document. Except as set forth herein or in the other Basic
Documents, Notes and Certificates so owned by or pledged to Seller or any such
Affiliate shall have an equal and proportionate benefit under the provisions of
this Agreement and the other Basic Documents, without preference, priority, or
distinction as among all of the Notes and Certificates of the same class.
SECTION 6.7. Security Interest. During the term of this Agreement, Seller
will not take any action to assign the security interest in any Financed
Vehicles other than pursuant to the Basic Documents.
SECTION 6.8. Indebtedness of Seller. Seller shall provide written notice
to the Rating Agencies at least thirty (30) days prior to the date it incurs any
material indebtedness or assumes or guarantees any material indebtedness of any
other entity in connection with the acquisition or transfer of receivables
(other than the Receivables) or the issuance and sale of securities (other than
the Notes and Certificates) secured by or evidencing beneficial ownership
interests in such receivables, or incurs any material, non-incidental
indebtedness in connection with the accomplishment of any of the foregoing.
ARTICLE VII SERVICER.
SECTION 7.1. Representations of Servicer. Servicer makes the following
representations on which Issuer is deemed to have relied in acquiring the
Receivables and the other properties and rights included in the Owner Trust
Estate and the Indenture Trustee and the Owner Trustee are deemed to have relied
in accepting administration of their trusts. The representations speak as of the
execution and delivery of the Agreement and shall survive the sale, transfer and
assignment of the Receivables to Issuer and the pledge thereof to Indenture
Trustee pursuant to the Indenture.
(a) Organization and Good Standing. Servicer 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 shall have, the
power, authority and legal right to service the Receivables and the other
properties and rights included in the Owner Trust Estate.
(b) Due Qualification. Servicer is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary licenses
and approvals in all jurisdictions in which the ownership or lease of property
or the conduct of its business (including the servicing of the Receivables as
required by this Agreement) shall require such qualifications.
2000-1 SALE AND SERVICING AGREEMENT
27
(c) Power and Authority. Servicer has the power, authority and legal right
to execute and deliver this Agreement and the Basic Documents to which it is a
party and to carry out their respective terms; and the execution, delivery and
performance of this Agreement and the Basic Documents to which it is a party
have been duly authorized by Servicer by all necessary corporate action.
(d) 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, the Basic Documents to which it is a
party or the consummation of the transactions contemplated hereby or thereby,
other than (i) as may be required under the blue sky or securities laws of any
State or the Securities Act of 1933, as amended, and (ii) the filing of UCC
financing statements.
(e) Binding Obligation. Each of this Agreement and the Basic Documents to
which it is a party constitutes a legal, valid and binding obligation of
Servicer, enforceable against Servicer in accordance with its respective terms,
subject, as to enforceability, to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation and other similar
laws affecting enforcement of the rights of creditors of banks generally and to
equitable limitations on the availability of specific remedies.
(f) No Violation. The execution, delivery and performance by Servicer of
this Agreement and the Basic Documents to which it is a party and the
consummation of the transactions contemplated hereby and thereby 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 disposition of any Lien upon any of its
material properties pursuant to the terms of, (i) the [certificate of
incorporation] or bylaws of Servicer, (ii) any material indenture, contract,
lease, mortgage, deed of trust or other instrument or agreement to which
Servicer is a party or by which Servicer is bound, or (iii) any law, order, rule
or regulation applicable to Servicer of any federal or state regulatory body,
any court, administrative agency, or other governmental instrumentality having
jurisdiction over Servicer.
(g) No Proceedings. There are no proceedings or investigations pending, or,
to Servicer's knowledge, threatened, before any court, regulatory body,
administrative agency, or tribunal or other governmental instrumentality having
jurisdiction over Servicer or its properties: (i) asserting the invalidity of
this Agreement, any other Basic Document, the Notes or the Certificates, (ii)
seeking to prevent the issuance of the Certificates or the Notes or the
consummation of any of the transactions contemplated by this Agreement or any
other Basic Document, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by Servicer of its obligations
under, or the validity or enforceability of, this Agreement, any other Basic
Document, the Notes or the Certificates, to the extent applicable, or (iv) that
may materially and adversely affect the federal or state income, excise,
franchise or similar tax attributes of the Certificates.
2000-1 SALE AND SERVICING AGREEMENT
28
SECTION 7.2. Indemnities of Servicer. (a) Subject to Section 10.5,
Servicer shall be liable in accordance herewith only to the extent of the
obligations specifically undertaken by Servicer under this Agreement.
(b) Servicer shall indemnify, defend and hold harmless Issuer, Owner
Trustee (individually and in its capacity as such), Indenture Trustee
(individually and in its capacity as such), Seller, the Certificateholders and
the Noteholders and any of the respective officers, directors, employees and
agents of Issuer, Owner Trustee, Indenture Trustee or Seller from any and all
costs, expenses, losses, claims, damages and liabilities (including reasonable
attorneys' fees and expenses) to the extent arising out of, or imposed upon any
such Person through, the gross negligence, willful misfeasance, breach of
contract or bad faith (other than errors in judgment) of Servicer in the
performance of its obligations and duties under this Agreement or any other
Basic Document or in the performance of the obligations and duties of any
subcustodian or subservicer in the performance of its obligations and duties
under any custody or subservicing agreement. Notwithstanding the foregoing, if
Servicer is rendered unable, in whole or in part, by virtue of an act of God,
act of war, fires, earthquake or other natural disasters, to satisfy its
obligations under this Agreement, Servicer shall not be deemed to have breached
any such obligation upon the sending of written notice of such event to the
other parties hereto, for so long as Servicer remains unable to perform such
obligation as a result of such event. This provision shall not be construed to
limit Servicer's or any other party's rights, obligations, liabilities, claims
or defenses which arise as a matter of law or pursuant to any other provision of
this Agreement.
(c) Servicer shall indemnify, defend and hold harmless Issuer, Owner
Trustee, and Indenture Trustee 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 the transactions contemplated in this
Agreement or in the other Basic Documents, including any sales, gross receipts,
general corporation, tangible or intangible personal property, franchise,
privilege, or license taxes, or any taxes of any kind which may be asserted (not
including any Federal or other income taxes arising out of transactions
contemplated by this Agreement and the other Basic Documents) against the
Issuer, and costs and expenses in defending against the same.
(d) Servicer shall indemnify, defend and hold harmless Issuer, Owner
Trustee (individually and in its capacity as such), Indenture Trustee
(individually and in its capacity as such), Seller, Certificateholders and the
Noteholders or any of the respective officers, directors, employees and agents
of Issuer, Owner Trustee, Indenture Trustee or Seller from any and all costs,
expenses, losses, claims, damages and liabilities (including reasonable
attorneys' fees and expenses) to the extent arising out of or imposed upon any
such Person as a result of any compensation payable to any subcustodian or
subservicer (including any fees payable in connection with the release of any
Receivable File from the custody of such subservicer or in connection with the
termination of the servicing activities of such subservicer with respect to any
Receivable) whether pursuant to the terms of any subservicing agreement or
otherwise.
2000-1 SALE AND SERVICING AGREEMENT
29
(e) Servicer shall indemnify, defend and hold harmless Issuer, Owner
Trustee (individually and in its capacity as such), Indenture Trustee
(individually and in its capacity as such), Seller, the Certificateholders and
the Noteholders or any of the respective directors, officers, employees and
agents of Issuer, Owner Trustee, Indenture Trustee and Seller from and against
any and all costs, expenses, losses, damages, claims and liabilities, including
reasonable fees and expenses of counsel and expenses of litigation, arising out
of or resulting from the use, ownership, or operation by the Servicer or any
Affiliate thereof of any Financed Vehicle.
Indemnification under this Section shall survive the resignation or removal of
Owner Trustee or Indenture Trustee and the termination of this Agreement and the
other Basic Documents, as applicable, and shall include reasonable fees and
expenses of counsel and other expenses of litigation. If Servicer 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 Servicer,
without interest.
SECTION 7.3. Merger or Consolidation of, or Assumption of the Obligations
of, Servicer. Any Person (a) into which Servicer may be merged or consolidated,
(b) which may result from any merger or consolidation to which Servicer shall be
a party, (c) which may succeed to the properties and assets of Servicer,
substantially as a whole, or (d) 50% of the voting stock of which is owned
directly or indirectly by AmSouth Bancorporation, may become the successor to
Servicer; provided that, unless AmSouth Bank is the surviving party to such
transaction, Servicer hereby covenants that it will not consummate any of the
foregoing transactions except upon satisfaction of the following: (i) the
surviving Servicer if other than AmSouth Bank, executes an agreement of
assumption to perform every obligation of Servicer under this Agreement, (ii)
immediately after giving effect to such transaction, no representation or
warranty made pursuant to Section 7.1 shall have been breached and no Servicer
Termination Event, and no event that, after notice or lapse of time, or both,
would become a Servicer Termination Event shall have occurred and be continuing,
(iii) Servicer shall have delivered to Owner Trustee and Indenture Trustee an
Officer's Certificate and an Opinion of Counsel each stating that such
consolidation, merger or succession and such agreement of assumption comply with
this Section and that all conditions precedent, if any, provided for in this
Agreement relating to such transaction have been complied with, and that the
Rating Agency Condition shall have been satisfied with respect to such
transaction, (iv) the surviving Servicer shall have a consolidated net worth at
least equal to that of the predecessor Servicer, and (v) such transaction will
not result in a material adverse Federal or state tax consequence to Issuer, the
Noteholders or the Certificateholders.
SECTION 7.4. Limitation on Liability of Servicer and Others. Neither
Servicer nor any of its directors, officers, employees or agents shall be under
any liability to Issuer, the Noteholders or the Certificateholders, except as
provided under this Agreement, for any action taken or for refraining from the
taking of any action by Servicer or any subservicer pursuant to this Agreement
or for errors in judgment; provided that this provision shall not protect
Servicer or any such person against any liability that would otherwise be
imposed by reason of willful
2000-1 SALE AND SERVICING AGREEMENT
30
misfeasance, bad faith, breach of contract or gross negligence in the
performance of duties (except for errors in judgment) under this Agreement.
Servicer or any subservicer and any of their respective directors, officers,
employees or agents may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising under this Agreement.
Except as provided in this Agreement, Servicer shall not be under any
obligation to appear in, prosecute or defend any legal action that shall not be
incidental to its duties to service the Receivables in accordance with this
Agreement and that in its opinion may involve it in any expense or liability;
provided that Servicer may (but shall not be required to) undertake any
reasonable action that it may deem necessary or desirable in respect of the
Basic Documents to protect the interests of the Certificateholders under this
Agreement and the Noteholders under the Indenture. In such event, the legal
expense and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Servicer.
SECTION 7.5. AmSouth Bank Not To Resign as Servicer. Subject to the
provisions of Section 7.3, AmSouth Bank hereby agrees not to resign from the
obligations and duties hereby imposed on it as Servicer under this Agreement
except upon determination that the performance of its duties hereunder shall no
longer be permissible under applicable law or if such resignation is required by
regulatory authorities. Notice of any such determination permitting the
resignation of AmSouth as Servicer shall be communicated to Owner Trustee and
Indenture Trustee at the earliest practicable time (and, if such communication
is not in writing, shall be confirmed in writing at the earliest practicable
time) and any such determination shall be evidenced by an Opinion of Counsel to
such effect delivered to Owner Trustee and Indenture Trustee concurrently with
or promptly after such notice. No such resignation shall become effective until
the earlier of Indenture Trustee or a Successor Servicer having assumed the
responsibilities and obligations of the resigning Servicer in accordance with
Section 8.2 or the date upon which any regulatory authority requires such
resignation.
SECTION 7.6. Existence. Subject to the provisions of Section 7.3, during
the term of this Agreement, AmSouth Bank will keep in full force and effect and
its existence, rights and franchises as an Alabama state banking corporation and
as a foreign corporation in all jurisdictions which the ownership or lease of
property or the conduct of its business (including the servicing of Receivables
as required by this Agreement) shall require such qualifications.
SECTION 7.7. Servicer May Own Notes or Certificates. The Servicer, and any
Affiliate of the Servicer, may, in its individual or any other capacity, become
the owner or pledgee of Notes or Certificates with the same rights as it would
have if it were not the Servicer or an Affiliate thereof, except as expressly
provided herein or in any Basic Document. Except as set forth herein or in the
other Basic Documents, Notes and Certificates so owned by or pledged to Servicer
or any such Affiliate shall have an equal and proportionate benefit under the
provisions of this Agreement and the other Basic Documents, without preference,
priority, or distinction as among all of the Notes and Certificates of the same
class.
2000-1 SALE AND SERVICING AGREEMENT
31
ARTICLE VIII SERVICER TERMINATION EVENTS.
SECTION 8.1. Servicer Termination Event. If any one of the following
events (a "Servicer Termination Event") shall occur and be continuing:
(a) any failure by Servicer to deliver to Indenture Trustee and Owner
Trustee the Servicer's Report in accordance with Section 4.9, or any failure by
Servicer (either as such or as "Seller" under the Purchase Agreement) or Seller
to deliver to Indenture Trustee or Owner Trustee for deposit in any of the Trust
Accounts or the Certificate Distribution Account any required payment or to
direct Indenture Trustee or Owner Trustee to make any required distributions
therefrom that shall continue unremedied for a period of five Business Days
after written notice of such failure is received by Servicer from Owner Trustee
or Indenture Trustee or after discovery of such failure by an Authorized Officer
of Servicer; or
(b) failure on the part of Servicer or Seller duly to observe or to perform
in any material respect any other covenants or agreements of Servicer or Seller,
as applicable, set forth in this Agreement or any other Basic Document to which
it is a party, which failure shall (i) materially and adversely affect the
rights of either the Certificateholders or Noteholders and (ii) continue
unremedied for a period of 60 days after discovery of such failure by an
Authorized Officer of Servicer or after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given (A) to
Servicer or Seller by Owner Trustee or Indenture Trustee or (B) to Servicer or
Seller and to Owner Trustee and Indenture Trustee by the Holders of Notes
evidencing not less than 25% of the Outstanding Amount of the Notes of the
Controlling Note Class or, if no Notes are outstanding, Holders of Certificates
evidencing not less than 25% of the outstanding Certificate Percentage
Interests, as applicable (or for such longer period, not in excess of 120 days,
as may be reasonably necessary to remedy such default; provided that such
default is capable of remedy within 120 days and Servicer delivers an Officer's
Certificate to Owner Trustee and Indenture Trustee to such effect and to the
effect that Servicer or Seller, as applicable, has commenced or will promptly
commence, and will diligently pursue, all reasonable efforts to remedy such
default); or
(c) an Insolvency Event occurs with respect to Servicer or Seller or any of
their respective successors;
then, and in each and every case, so long as any Servicer Termination Event
shall not have been remedied, either Indenture Trustee, or the Holders of Notes
evidencing greater than 50% of the Outstanding Amount of the Notes of the
Controlling Note Class (or, if no Notes are then Outstanding, either the Owner
Trustee or the Holders of Certificates evidencing greater than 50% of the
Certificate Percentage Interests), by notice then given in writing to Servicer
(and to Owner Trustee or Indenture Trustee, as applicable, if given by the
Holders, and the Rating Agencies) may terminate all the rights and obligations
(other than the obligations set forth in Section 7.2) of Servicer under this
Agreement and the rights and obligations of any subcustodian or subservicer
pursuant to the terms of any related custody or subservicing agreement. On or
after the receipt by Servicer of such written notice, all authority and power of
Servicer under this
2000-1 SALE AND SERVICING AGREEMENT
32
Agreement, whether with respect to the Notes, the Certificates or the
Receivables or otherwise, shall, without further action, pass to and be vested
in Indenture Trustee or such Successor Servicer as may be appointed under
Section 8.2; and, without limitation, Indenture Trustee and Owner Trustee are
hereby authorized and empowered to execute and deliver, on behalf of the
predecessor Servicer, as attorney-in-fact or otherwise, any and all documents
and other instruments, and to do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice of termination,
whether to complete the transfer and endorsement of the Receivables and related
documents, or otherwise. The predecessor Servicer shall cooperate with the
Successor Servicer, Indenture Trustee and Owner Trustee in effecting the
termination of the responsibilities and rights of the predecessor Servicer under
this Agreement, including the transfer to the Successor Servicer for
administration by it of all cash amounts that shall at the time be held by the
predecessor Servicer for deposit, or shall thereafter be received by it with
respect to a Receivable. Servicer shall promptly transfer its electronic records
relating to the Receivables to the Successor Servicer in such electronic form as
the Successor Servicer may reasonably request and shall promptly transfer to the
Successor Servicer all other records, correspondence and documents necessary for
the continued servicing of the Receivables in the manner and at such times as
the Successor Servicer shall reasonably request. All reasonable costs and
expenses (including attorneys' fees) incurred in connection with transferring
the Receivable Files to the Successor Servicer and amending this Agreement to
reflect such succession as Servicer pursuant to this Section shall be paid by
the predecessor Servicer upon presentation of reasonable documentation of such
costs and expenses.
SECTION 8.2. Appointment of Successor. (a) Upon Servicer's receipt of
notice of termination, pursuant to Section 8.1 or Servicer's resignation (if and
to the extent permitted in accordance with the terms of this Agreement), the
predecessor Servicer shall continue to perform its functions as Servicer under
this Agreement, in the case of termination, only until the date specified in
such termination notice or, if no such date is specified in a notice of
termination, until receipt of such notice and, in the case of resignation, until
the earlier of (i) the date 45 days from the delivery to Owner Trustee and
Indenture Trustee of written notice of such resignation (or written confirmation
of such notice) in accordance with the terms of this Agreement and (ii) the date
upon which the predecessor Servicer shall become unable to act as Servicer, as
specified in the notice of resignation and accompanying Opinion of Counsel. In
the event of Servicer's termination or resignation hereunder, Indenture Trustee
shall appoint a Successor Servicer (which may be the Indenture Trustee), and the
Successor Servicer shall accept its appointment by a written assumption in form
acceptable to Owner Trustee and Indenture Trustee. In the event that a Successor
Servicer has not been appointed at the time when the predecessor Servicer has
ceased to act as Servicer in accordance with this Section, Indenture Trustee
without further action shall automatically be appointed the Successor Servicer
and Indenture Trustee shall be entitled to the Servicing Fee. Notwithstanding
the above, Indenture Trustee shall, if it shall be unwilling or unable so to
act, appoint or petition a court of competent jurisdiction to appoint, any
established institution, having a net worth of not less than $50,000,000 and
whose regular business shall include the servicing of consumer receivables, as
the successor to Servicer under this Agreement; provided, that the appointment
of any such Successor Servicer will not result in
2000-1 SALE AND SERVICING AGREEMENT
33
the withdrawal, qualification or reduction of the outstanding rating assigned to
the Certificates or Notes by any Rating Agency.
(b) Upon appointment, the Successor Servicer (including Indenture Trustee
acting as Successor Servicer) shall be the successor in all respects to the
predecessor Servicer and shall be subject to all the responsibilities, duties
and liabilities arising thereafter relating thereto placed on the predecessor
Servicer and shall be entitled to the Servicing Fee and all the rights granted
to the predecessor Servicer by the terms and provisions of this Agreement. No
Successor Servicer shall be liable for any acts or omissions of any predecessor
Servicer.
(c) A transfer of servicing hereunder shall not affect the rights and
duties of the parties hereunder (including the obligations and indemnities of
the predecessor Servicer pursuant to Section 4.7, 7.1 or 7.2) other than those
relating to the management, administration, servicing, custody or collection of
the Receivables and the other rights and properties included in the Owner Trust
Estate. The Successor Servicer shall, upon its appointment pursuant to Section
8.2 and as part of its duties and responsibilities under this Agreement,
promptly take all action it deems necessary or appropriate so that the
predecessor Servicer (in whatever capacity) is paid or reimbursed all amounts it
is entitled to receive under this Agreement on each Distribution Date subsequent
to the date on which it is terminated as Servicer hereunder.
SECTION 8.3. Payment of Servicing Fee. If Servicer shall be replaced, the
predecessor Servicer shall be entitled to receive any accrued and unpaid
Servicing Fees and any Supplemental Servicing Fees accrued and unpaid or
received to the effective date of the termination of the predecessor Servicer,
in each case, in accordance with Section 4.8.
SECTION 8.4. Notification to Noteholders and Certificateholders. Upon any
termination of, or appointment of a successor to, Servicer pursuant to this
Article VIII, Owner Trustee shall give prompt written notice thereof to
Certificateholders and Indenture Trustee shall give prompt written notice
thereof to Noteholders.
SECTION 8.5. Waiver of Past Defaults. The Holders of Notes evidencing not
less than a majority of the Outstanding Amount of the Notes of the Controlling
Note Class (or the Holders of Certificates evidencing not less than a majority
of the outstanding Certificate Percentage Interests, as applicable, in the case
of any default which does not adversely affect Indenture Trustee or the
Noteholders) may, on behalf of all Noteholders and Certificateholders, waive in
writing any default by Servicer in the performance of its obligations hereunder
and its consequences, except a default in making any required deposits to any of
the Trust Accounts in accordance with this Agreement. Upon any such waiver of a
past default, such default shall cease to exist, and any Servicer Termination
Event arising therefrom shall be deemed to have been remedied for every purpose
of this Agreement. No such waiver shall extend to any subsequent or other
default or impair any right consequent thereto.
2000-1 SALE AND SERVICING AGREEMENT
34
ARTICLE IX. TERMINATION.
SECTION 9.1. Optional Purchase of All Receivables; Termination Notice. (a)
On the last day of any Collection Period immediately preceding a Determination
Date as of which the then outstanding Pool Balance is 5% or less of the Original
Pool Balance, Servicer shall have the option to purchase the Owner Trust Estate
other than the Trust Accounts, the Certificate Distribution Account and any
funds or investments therein. To exercise such option, Servicer shall deposit
pursuant to Section 5.4 in the Collection Account an amount which, when added to
the amounts on deposit in the Collection Account for such Distribution Date,
equals the sum of (a) the unpaid principal amount of the then outstanding Notes,
plus accrued and unpaid interest thereon, plus (b) any amounts owed to
Certificateholders. The Notes and the Certificates will be redeemed
concurrently therewith.
(b) Following the satisfaction and discharge of the Indenture and the
payment in full of the principal of and interest on the Notes, the
Certificateholders will succeed to the rights of the Noteholders hereunder.
(c) Notice of any termination of Issuer shall be given by Servicer to Owner
Trustee, Indenture Trustee and the Rating Agencies as soon as practicable after
Servicer has received notice thereof.
ARTICLE X. MISCELLANEOUS PROVISIONS.
SECTION 10.1 Amendment. (a) This Agreement may be amended by Seller,
Servicer, Owner Trustee and Indenture Trustee, 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 or of modifying in any manner the rights of the Noteholders or
the Certificateholders; provided that such action shall not, as evidenced
by an Opinion of Counsel delivered to 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 satisfied; and
2000-1 SALE AND SERVICING AGREEMENT
35
(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 generally
accepted accounting principles ("GAAP") by Seller to Issuer, (b) Issuer to
avoid becoming a member of Seller's consolidated group under GAAP or (c)
the Seller, AmSouth Bank or any of its 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 satisfied.
(b) This Agreement may also be amended from time to time by Seller,
Servicer, Owner Trustee and Indenture Trustee, with 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 or of modifying in any manner the rights of the Noteholders or
the Certificateholders; 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, Servicer shall
furnish written notification of the substance of such amendment or consent to
each Rating Agency. Promptly after the execution of any such amendment or
consent, Servicer shall furnish written notification of the substance of such
amendment or consent to each Noteholder and Certificateholder.
(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 10.2(i)(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 10.2 Protection of Title to Trust Property. (a) Seller shall
execute and file such financing statements and cause to be executed and filed
such continuation statements, all in
2000-1 SALE AND SERVICING AGREEMENT
36
such manner and in such places as may be required by law fully to preserve,
maintain and protect the interest of Issuer and the interests of Indenture
Trustee in the Receivables and the proceeds thereof. Seller shall deliver (or
cause to be delivered) to Owner Trustee and Indenture Trustee file-stamped
copies of, or filing receipts for, any document filed as provided above, as soon
as available following such filing.
(b) Neither Seller nor Servicer shall 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 Owner Trustee and Indenture Trustee at least five days' prior
written notice thereof and shall have promptly filed appropriate amendments to
all previously filed financing statements or continuation statements.
(c) Each of Seller and Servicer shall have an obligation to give Owner
Trustee and Indenture Trustee at least 60 days' prior written notice of any
relocation of its principal executive office if, as a result 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. Servicer shall at all times maintain each office from which it shall
service Receivables, and its principal executive office, within the United
States of America.
(d) Servicer shall maintain accounts and records as to each Receivable
accurately and in sufficient detail to permit (i) the reader thereof to know at
any time the status of such Receivable, including payments and recoveries made
and payments owing (and the nature of each) and (ii reconciliation between
payments or recoveries on (or with respect to) each Receivable and the amounts
from time to time deposited in the Collection Account in respect of such
Receivable.
(e) Servicer shall maintain its computer systems so that, from and after
the time of sale under this Agreement of the Receivables, Servicer's master
computer records (including any backup archives) that refer to a Receivable
shall indicate clearly the interest of Issuer and Indenture Trustee in such
Receivable and that such Receivable is owned by Issuer and has been pledged to
Indenture Trustee pursuant to the Indenture. Indication of Issuer's and
Indenture Trustee's interest in a Receivable shall be deleted from or modified
on Servicer's computer systems when, and only when, the related Receivable shall
have been paid in full or repurchased by Seller or purchased by Servicer.
(f) If at any xxxx Xxxxxx or Servicer 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, Servicer
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 and is owned by Issuer and has been
pledged to Indenture Trustee.
2000-1 SALE AND SERVICING AGREEMENT
37
(g) Servicer, upon receipt of reasonable prior notice, shall permit
Indenture Trustee, Owner Trustee and their respective agents at any time during
normal business hours to inspect, audit and make copies of and abstracts from
Servicer's records regarding any Receivable.
(h) Upon request at any time 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 or any of the Basic
Documents, Servicer shall furnish to Owner Trustee or to Indenture Trustee,
within thirty Business Days, a list of all Receivables (by contract number and
name of Obligor) then owned by Issuer, 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.
(i) Servicer shall deliver to 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 Issuer and Indenture Trustee 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; 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 Issuer and Indenture Trustee 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.
(j) Servicer shall cause Seller, to the extent required by applicable law,
to cause the Certificates and the Notes to be registered with the Commission
pursuant to Section 12(b) or Section 12(g) of the Exchange Act within the time
periods specified in such sections.
SECTION 10.3 Notices. All demands, notices and communications upon or to
Seller, Servicer, Owner Trustee, Indenture Trustee or the Rating Agencies under
this Agreement shall be in writing, personally delivered, sent by overnight
courier or mailed by certified mail, return receipt requested, and shall be
deemed to have been duly given upon receipt (a) in the case of
2000-1 SALE AND SERVICING AGREEMENT
38
Seller, to AmSouth Auto Receivables LLC, 0000 0xx Xxxxxx Xxxxx, XxXxxxx/XXXXX
Xxxxx, Xxxxxxxxxx, Xxxxxxx, 00000, Attention: R. Xxxx Xxxx (b) in the case of
Servicer, to AmSouth Bank, 0000 0xx Xxxxxx Xxxxx, XxXxxxx/XXXXX Xxxxx,
Xxxxxxxxxx, Xxxxxxx, 00000, Attention: Xxxxx Xxxxx (c) in the case of Issuer or
Owner Trustee, at the Corporate Trust Office, (d) in the case of Indenture
Trustee, at the Corporate Trust Office, (e) in the case of Moody's, to Xxxxx'x
Investors Service, Inc., to 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention of Asset Backed Securities Group, and (f) in the case of Standard &
Poor's, to Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention of
Asset Backed Surveillance Department. Any notice required or permitted to be
mailed to a Noteholder or Certificateholder shall be given by first class mail,
postage prepaid, at the address of such Person as shown in the Note Register or
the Certificate Register, as applicable. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Noteholder or Certificateholder shall receive such
notice.
SECTION 10.4. Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Sections 4.1, 6.4 and 7.3 and as
provided in the provisions of this Agreement concerning the resignation of
Servicer, this Agreement may not be assigned by Seller or Servicer without the
prior written consent of the Owner Trustee, Indenture Trustee, the Noteholders
evidencing not less than 66 2/3% of the Outstanding Amount of the Notes and the
Certificateholders evidencing not less than 66 2/3% of the outstanding
Certificate Percentage Interests.
SECTION 10.5. Litigation and Indemnities. 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 Sections 6.3 and 7.2, such Person (the "Indemnified Person")
shall promptly notify the person against whom such indemnity may be sought (the
"Indemnifying Person") in writing, and the Indemnifying Person, upon request of
the Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the
reasonable fees and expenses of such counsel related to such proceeding. The
Indemnifying Person shall not be liable for any settlement of any claim or
proceeding effected without written consent, but if settled with such consent of
ir there be a final judgment for the plaintiff, the Indemnifying Person agrees
to indemnify any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. No Indemnifying Person shall, 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.
SECTION 10.6. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of Seller, Servicer, Issuer, Owner Trustee
(individually and in its capacity
2000-1 SALE AND SERVICING AGREEMENT
39
as such) and Indenture Trustee (individually and in its capacity as such) and
for the benefit of the Certificateholders and the Noteholders, as third-party
beneficiaries, and nothing in this Agreement, whether express or implied, shall
be construed to give to any other Person any legal or equitable right, remedy or
claim in the Owner Trust Estate or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
SECTION 10.7. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not create or render unenforceable
such provision in any other jurisdiction.
SECTION 10.8. Separate Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 10.9. Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
SECTION 10.10. 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 10.11. Assignment to Indenture Trustee. Seller hereby acknowledges
and consents to any pledge, assignment and grant of a security interest by
Issuer to Indenture Trustee pursuant to the Indenture for the benefit of the
Noteholders of all right, title and interest of Issuer in, to and under the
Receivables and/or the assignment of any or all of Issuer's rights and
obligations hereunder to Indenture Trustee.
SECTION 10.12. Nonpetition Covenant. Notwithstanding any prior termination
of this Agreement, Owner Trustee, Indenture Trustee, Servicer and Seller shall
not, prior to the date which is one year and one day after the termination of
this Agreement with respect to Issuer, acquiesce, petition or otherwise invoke
or cause Issuer to invoke the process of any court or government authority for
the purpose of commencing or sustaining a case against Issuer under any Federal
or state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of Issuer or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of Issuer. This Section 10.2 shall survive the
termination of this Agreement.
SECTION 10.13. Limitation of Liability of Owner Trustee and Indenture
Trustee. (a) Notwithstanding anything contained herein to the contrary, this
Agreement has been
2000-1 SALE AND SERVICING AGREEMENT
40
countersigned by The Chase Manhattan Bank not in its individual capacity but
solely in its capacity as Owner Trustee of Issuer and in no event shall The
Chase Manhattan Bank in its individual capacity or, except as expressly provided
in the Trust Agreement, as Owner Trustee have any liability for the
representations, warranties, covenants, agreements or other obligations of
Issuer hereunder or in any of the certificates, notices or agreements delivered
pursuant hereto, as to all of which recourse shall be had solely to the assets
of Issuer. For all purposes of this Agreement, in the performance of its duties
or obligations hereunder or in the performance of any duties or obligations of
Issuer hereunder, Owner Trustee shall be subject to, and entitled to the
benefits of, the terms and provisions of Articles VI, VII and VIII of the Trust
Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been accepted by The Bank of New York Trust Company of Florida,
National Association not in its individual capacity but solely as Indenture
Trustee and in no event shall it have any liability for the representations,
warranties, covenants, agreements or other obligations of Issuer hereunder or in
any of the certificates, notices or agreements delivered pursuant hereto, as to
all of which recourse shall be had solely to the assets of Issuer. For the
purposes of this Agreement, in the performance of its duties or obligations
hereunder, Indenture Trustee shall be subject to, and entitled to the benefits
of, the terms and provisions of Article VI of the Indenture..
SECTION 10.14. Further Assurances. Seller and the Servicer agree to do and
perform, from time to time, any and all acts and to execute any and all further
instruments required or reasonably requested by Owner Trustee or Indenture
Trustee more fully to effect the purposes of this Agreement, including, without
limitation, the execution of any financing statements or continuation statements
relating to the Receivables for filing under the provisions of the UCC of any
applicable jurisdiction.
SECTION 10.15. No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Owner Trustee, Indenture Trustee, the
Noteholders or the Certificateholders, any right, remedy, power or privilege
hereunder, shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges therein provided are
cumulative and not exhaustive of any rights, remedies, powers and privileges
provided by law.
2000-1 SALE AND SERVICING AGREEMENT
41
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective duly authorized officers as of
the day and year first above written.
AMSOUTH AUTO TRUST 2000-1
By: THE CHASE MANHATTAN BANK, not in its
individual capacity, but solely as Owner Trustee
By: /s/ Xxxxxxxx X. Xxxxx
--------------------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
AMSOUTH AUTO RECEIVABLES LLC,
By: /s/ R. Xxxx Xxxx
--------------------------------------------------
Name: R. Xxxx Xxxx
Title: President
AMSOUTH BANK, Servicer,
By: /s/ R. Xxxx Xxxx
--------------------------------------------------
Name: R. Xxxx Xxxx
Title: Senior Vice President
2000-1 SALE AND SERVICING AGREEMENT
S-1
Acknowledged and Agreed to:
The Bank of New York Trust Company
of Florida, National Association,
not in its individual capacity
but solely as Indenture Trustee,
By: /s/ Xxxxxx Xxxxx
--------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
2000-1 SALE AND SERVICING AGREEMENT
S-2
SCHEDULE A
(Delivered on Disk to Trustee and Owner Trustee)
2000-1 SALE AND SERVICING AGREEMENT
Schedule A-1
SCHEDULE B
Location of Receivables Files
-----------------------------
The Receivables sold by AmSouth Bank to Seller and sold by Seller to Issuer are
located at the offices of AmSouth Bank listed below
2000-1 SALE AND SERVICING AGREEMENT
Schedule B-1
EXHIBIT A
Form of Servicer's Report
-------------------------
2000-1 SALE AND SERVICING AGREEMENT
Exhibit A-1
APPENDIX X
DEFINITIONS
"Accrued Class A Note Interest" shall mean, with respect to any
Distribution Date, the sum of the Class A Noteholders' Monthly Accrued Interest
for such Distribution Date and the Class A Noteholders' Interest Carryover
Shortfall for such Distribution Date.
"Accrued Class B Note Interest" shall mean, with respect to any
Distribution Date, the sum of the Class B Noteholders' Monthly Accrued Interest
for such Distribution Date and the Class B Noteholders' Interest Carryover
Shortfall for such Distribution Date.
"Accrued Class C Note Interest" shall mean, with respect to any
Distribution Date, the sum of the Class C Noteholders' Monthly Accrued Interest
for such Distribution Date and the Class C Noteholders' Interest Carryover
Shortfall for such Distribution Date.
"Act" is defined in Section 11.3(a) of the Indenture.
"Administration Agreement" means the Administration Agreement among AmSouth
Bank, as Administrator, AmSouth Auto Trust 2000-1, as Issuer, and The Bank of
New York Trust Company of Florida, National Association, as Indenture Trustee,
dated October 1, 2000, as the same may be amended and supplemented from time to
time.
"Administration Fee" is defined in Section 4 of the Administration
Agreement.
"Administrator" means AmSouth Bank, in its capacity as administrator under
the Administration Agreement, and each successor Administrator.
"Affiliate" means, with respect to any specified Person, any other Person
controlling, controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing. A Person shall not be
deemed to be an Affiliate of any specified Person solely because such other
Person has the contractual right or obligation to manage such specified Person
or act as servicer with respect to the financial assets of such specified Person
unless such other Person controls the specified Person through equity ownership
or otherwise.
"AmSouth Bank" means AmSouth Bank, a banking corporation organized under
the laws of the State of Alabama.
Appendix X, Page 1
"Authenticating Agent" is defined in Section 2.13 of the Indenture.
"Authorized Officer" means, with respect to Issuer and Servicer, any
officer of Owner Trustee or Servicer, as applicable, who is authorized to act
for Owner Trustee or Servicer, as applicable, in matters relating to Issuer and
who is identified on the list of Authorized Officers delivered by each of Owner
Trustee and Servicer to Indenture Trustee on the Closing Date (as such list may
be modified or supplemented from time to time thereafter).
"Available Collections" shall mean, for any Distribution Date, the sum of
the following amounts with respect to the Collection Period preceding such
Distribution Date: (i) all payments collected with respect to the Receivables;
(ii) all Liquidation Proceeds attributable to Receivables which became
Liquidated Receivables during such Collection Period in accordance with the
Servicer's customary servicing procedures, and all recoveries in respect of
Liquidated Receivables which were written off in prior Collection Periods; (iii)
the Purchase Amount received with respect to each Receivable that became a
Purchased Receivable during such Collection Period; and (vi) partial prepayments
of any refunded item included in the principal balance of a Receivable, such as
extended warranty protection plan costs, or physical damage, credit life,
disability insurance premiums; provided, however, that in calculating the
Available Collections the following will be excluded: (1) all payments and
proceeds (including Liquidation Proceeds) of any Receivables the Purchase Amount
of which has been included in the Available Funds in a prior Collection Period
and (2) amounts consisting of the Supplemental Servicing Fee.
"Available Funds" shall mean, for any Distribution Date, the sum of the
Available Collections for such Distribution Date and the Reserve Account Excess
Amount for such Distribution Date.
"Bank Regulatory Authorities" means the Federal Reserve Board, the Federal
Deposit Insurance Corporation and Office of the Comptroller of Currency.
"Basic Documents" means the Purchase Agreement, the Indenture, the Note
Depository Agreement, the Sale and Servicing Agreement, the Trust Agreement, the
Administration Agreement, the Notes, the Certificates and other documents and
certificates delivered in connection therewith.
"Benefit Plan" is defined in Section 3.12 of the Trust Agreement.
"Book Entry Note" means a beneficial interest in the Notes, ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 2.10 of the Indenture.
"Business Day" means a day that is not a Saturday or a Sunday and that in
the States of New York, Alabama and the State in which the Corporate Trust
Office is located is neither a legal holiday nor a day on which banking
institutions are authorized by law, regulation or executive order to be closed.
Appendix X, Page 2
"Certificate" means a certificate evidencing the beneficial interest of a
Certificateholder in the Trust, substantially in the form of Exhibit A to the
Trust Agreement.
"Certificate Account Property" means the Certificate Distribution Account,
all amounts and investments held from time to time therein (whether in the form
of deposit account, Physical Property, book entry securities, uncertificated
securities or otherwise), and all proceeds of the foregoing.
"Certificate Distribution Account" is defined in Section 5.1 of the Trust
Agreement.
"Certificate Paying Agent" shall mean any paying agent or co-paying agent
appointed pursuant to Section 3.10 of the Trust Agreement and shall initially be
the Owner Trustee.
"Certificate Percentage Interest" shall mean with respect to any
Certificate, the percentage interest of ownership in the Issuer represented
thereby as set forth on the face thereof.
"Certificate Register" and "Certificate Registrar" means the register
mentioned and the registrar appointed pursuant to Section 3.4 of the Trust
Agreement.
"Certificateholder" means the Person in whose name a Certificate is
registered on the Certificate Register.
"Class" shall mean a class of Notes, which may be the Class A-1 Notes, the
Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes, the Class B Notes or
Class C Notes.
"Class A Notes" shall mean, collectively, the Class A-1 Notes, the Class X-
0 Notes, the Class A-3 Notes and, the Class A-4 Notes.
"Class A Noteholders' Interest Carryover Shortfall" shall mean, with
respect to any Distribution Date, the excess of the Class A Noteholders' Monthly
Accrued Interest for the preceding Distribution Date and any outstanding Class A
Noteholders' Interest Carryover Shortfall on such preceding Distribution Date,
over the amount in respect of interest that is actually paid to Noteholders of
Class A Notes on such preceding Distribution Date, plus interest on the amount
of interest due but not paid to Noteholders of Class A Notes on the preceding
Distribution Date, to the extent permitted by law, at the respective Interest
Rates borne by such Class A Notes for the related Interest Period.
"Class A Noteholders' Monthly Accrued Interest" shall mean, with respect to
any Distribution Date, the aggregate interest accrued for the related Interest
Period on the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the
Class A-4 Notes at the respective Interest Rate for such Class and on the
outstanding principal amount of the Notes of each such Class on the immediately
preceding Distribution Date or the Closing Date, as the case may be, after
giving effect to all payments of principal to the Noteholders of the Notes of
such Class on or prior to such preceding Distribution Date.
Appendix X, Page 3
"Class A-1 Final Scheduled Distribution Date" shall mean the November 15,
2001 Distribution Date.
"Class A-1 Interest Rate" means 6.745% per annum. Interest with respect to
the Class A-1 Notes shall be computed on the basis of actual days elapsed and a
360-day year for all purposes of the Basic Documents.
"Class A-1 Noteholder" shall mean the Person in whose name a Class A-1 Note
is registered on the Note Register.
"Class A-1 Notes" means the Class A-1 6.745% Asset Backed Notes,
substantially in the form of Exhibit A-1 to the Indenture.
"Class A-2 Final Scheduled Distribution Date" shall mean the February 17,
2003 Distribution Date.
"Class A-2 Interest Rate" means 6.700% per annum. Interest with respect to
the Class A-2 Notes shall be computed on the basis of a 360-day year consisting
of twelve 30-day months for all purposes of the Basic Documents.
"Class A-2 Noteholder" shall mean the Person in whose name a Class A-2 Note
is registered on the Note Register.
"Class A-2 Notes" means the Class A-2 6.700% Asset Backed Notes,
substantially in the form of Exhibit A-2 to the Indenture.
"Class A-3 Final Scheduled Distribution Date" shall mean the July 15, 2004
Distribution Date.
"Class A-3 Interest Rate" means 6.670% per annum. Interest with respect to
the Class A-3 Notes shall be computed on the basis of a 360-day year consisting
of twelve 30-day months for all purposes of the Basic Documents.
"Class A-3 Noteholder" shall mean the Person in whose name a Class A-3 Note
is registered on the Note Register.
"Class A-3 Notes" means the Class A-3 6.670% Asset Backed Notes,
substantially in the form of Exhibit A-3 to the Indenture.
"Class A-4 Final Scheduled Distribution Date" shall mean the February 15,
2005 Distribution Date.
Appendix X, Page 4
"Class A-4 Interest Rate" means 6.760% per annum. Interest with respect to
the Class A-4 Notes shall be computed on the basis of a 360-day year consisting
of twelve 30-day months for all purposes of the Basic Documents.
"Class A-4 Noteholder" shall mean the Person in whose name a Class A-4 Note
is registered on the Note Register.
"Class A-4 Notes" means the Class A-4 6.760% Asset Backed Notes,
substantially in the form of Exhibit A-4 to the Indenture.
"Class B Final Scheduled Distribution Date" shall mean the July 15, 2005
Distribution Date.
"Class B Noteholder" shall mean the Person in whose name a Class B Note is
registered on the Note Register.
"Class B Noteholders' Interest Carryover Shortfall" shall mean, with
respect to any Distribution Date, the excess of the Class B Noteholders' Monthly
Accrued Interest for the preceding Distribution Date and any outstanding Class B
Noteholders' Interest Carryover Shortfall on such preceding Distribution Date,
over the amount in respect of interest that is actually paid to Noteholders of
Class B Notes on such preceding Distribution Date, plus interest on the amount
of interest due but not paid to Noteholders of Class B Notes on the preceding
Distribution Date, to the extent permitted by law, at the Class B Rate for the
related Interest Period.
"Class B Noteholders' Monthly Accrued Interest" shall mean, with respect to
any Distribution Date, the aggregate interest accrued for the related Interest
Period on the Class B Notes at the Class B Rate on the outstanding principal
amount of the Class B Notes on the immediately preceding Distribution Date or
the Closing Date, as the case may be, after giving effect to all payments of
principal to the Noteholders of the Class B Notes on or prior to such preceding
Distribution Date.
"Class B Interest Rate" means 7.080% per annum. Interest with respect to
the Class B Notes shall be computed on the basis of a 360-day year consisting of
twelve 30-day months for all purposes of the Basic Documents.
"Class B Noteholder" shall mean the Person in whose name a Class B Note is
registered on the Note Register.
"Class B Notes" means the Class B 7.080% Asset Backed Notes, substantially
in the form of Exhibit B to the Indenture.
"Class C Final Scheduled Distribution Date" shall mean the February 15,
2007 Distribution Date.
Appendix X, Page 5
"Class C Noteholder" shall mean the Person in whose name a Class C Note is
registered on the Note Register.
"Class C Noteholders' Interest Carryover Shortfall" shall mean, with
respect to any Distribution Date, the excess of the Class C Noteholders' Monthly
Accrued Interest for the preceding Distribution Date and any outstanding Class C
Noteholders' Interest Carryover Shortfall on such preceding Distribution Date,
over the amount in respect of interest that is actually paid to Noteholders of
Class C Notes on such preceding Distribution Date, plus interest on the amount
of interest due but not paid to Noteholders of Class C Notes on the preceding
Distribution Date, to the extent permitted by law, at the Class C Rate for the
related Interest Period.
"Class C Noteholders' Monthly Accrued Interest" shall mean, with respect to
any Distribution Date, the aggregate interest accrued for the related Interest
Period on the Class C Notes at the Class C Rate on the outstanding principal
amount of the Class C Notes on the immediately preceding Distribution Date or
the Closing Date, as the case may be, after giving effect to all payments of
principal to the Noteholders of the Class C Notes on or prior to such preceding
Distribution Date.
"Class C Interest Rate" means 7.440% per annum. Interest with respect to
the Class C Notes shall be computed on the basis of a 360-day year consisting of
twelve 30-day months for all purposes of the Basic Documents.
"Class C Noteholder" shall mean the Person in whose name a Class C Note is
registered on the Note Register.
"Class C Notes" means the Class C 7.440% Asset Backed Notes, substantially
in the form of Exhibit C to the Indenture.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
"Closing Date" means October 19, 2000.
"Code" means the Internal Revenue Code of 1986 and Treasury Regulations
promulgated thereunder.
"Collateral" is defined in the Granting Clause of the Indenture.
"Collection Account" means the account designated as such, established and
maintained pursuant to Section 5.1 of the Sale and Servicing Agreement.
Appendix X, Page 6
"Collection Period" means, (a) in the case of the initial Collection
Period, the period from but not including the Cutoff Date to and including
October 31, 2000 and (b) thereafter, each calendar month during the term of the
Sale and Servicing Agreement. With respect to any Determination Date, Deposit
Date or Distribution Date, the "related Collection Period" means the Collection
Period preceding the month in which such Determination Date, Deposit Date or
Distribution Date occurs.
"Collections" means all collections on the Receivables and any proceeds
from Insurance Policies and lender's single interest insurance policies.
"Commission" means the Securities and Exchange Commission.
"Contract Rate" means, with respect to a Receivable, the rate per annum of
interest charged on the outstanding principal balance of such Receivable.
"Controlling Note Class" shall mean, with respect to any Notes Outstanding,
the Class A Notes (voting together as a single class) as long as any Class A
Notes are Outstanding, and thereafter the Class B Notes as long as any Class B
Notes are Outstanding, and thereafter the Class C Notes as long as any Class C
Notes are Outstanding (excluding Notes held by the Seller, the Servicer or their
Affiliates).
"Corporate Trust Office" means:
(a) as used in the Indenture, or otherwise with respect to Indenture
Trustee, the principal office of Indenture Trustee at which at any
particular time its corporate trust business shall be administered which
office at date of the execution of the Indenture is located at 000 Xxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000, Attention ABS Group, AmSouth 2000-
1, Attention: Corporate Trust, ABS Group, AmSouth 2000-1 or at such other
address as Indenture Trustee may designate from time to time by notice to
the Noteholders, Servicer and Issuer, or the principal corporate trust
office of any successor Indenture Trustee (the address of which the
successor Indenture Trustee will notify the Noteholders and Issuer); and
(b) as used in the Trust Agreement, or otherwise with respect to
Owner Trustee, the principal corporate trust office of Owner Trustee
located at 000 Xxxx 00/xx/ Xxxxxx, 00/xx/ Xxxxx, Xxx Xxxx, Xxx Xxxx 00000;
or at such other address as Owner Trustee may designate by notice to the
Certificateholders and Depositor, or the principal corporate trust office
of any successor Owner Trustee (the address of which the successor owner
trustee will notify the Certificateholders and Depositor).
"Custodian" means Servicer in its capacity as agent of Issuer, as custodian
of the Receivable Files.
"Cutoff Date" means the close of business on September 30, 2000.
Appendix X, Page 7
"Cutoff Date Principal Balance" means, with respect to any Receivable, the
Initial Principal Balance of such Receivable minus the sum of the portion of all
payments received under such Receivable from or on behalf of the related Obligor
on or prior to the Cutoff Date and allocable to principal in accordance with the
terms of the Receivable.
"Dealer" means, with respect to any Receivable, the seller of the related
Financed Vehicle.
"Dealer Agreement" means an agreement between an Originator and a Dealer
pursuant to which such Originator acquires Motor Vehicle Loans from the Dealer
or gives such Dealer the right to induce persons to apply to such Originator for
loans in connection with the retail sale of Motor Vehicles by such Dealer.
"Dealer Recourse" means, with respect to any Dealer, any rights and
remedies against such Dealer under the related Dealer Agreement (other than with
respect to any breach of representation or warranty thereunder) with respect to
credit losses on a Receivable secured by a Financed Vehicle sold by such Dealer.
"Default" means any occurrence that is, or with notice or the lapse of time
or both would become, an Event of Default.
"Defaulted Receivable" means, with respect to any Collection Period, a
Receivable (other than a Purchased Receivable) which Servicer has determined to
charge off during such Collection Period in accordance with its customary
servicing practices (and, in no event later than 120 days after a Receivable
shall have become delinquent); provided that any Receivable which Seller or
Servicer is obligated to repurchase or purchase shall be deemed to have become a
Defaulted Receivable during a Collection Period if AmSouth Bank, Seller or
Servicer fails to deposit the related Purchase Amount on the related Deposit
Date when due.
"Definitive Notes" is defined in Section 2.10 of the Indenture.
"Delivery" when used with respect to Trust Account Property means:
(a) with respect to bankers' acceptances, commercial paper,
negotiable certificates of deposit and other obligations that constitute
"instruments" within the meaning of Section 9-105(l)(i) of the UCC and are
susceptible of physical delivery, transfer thereof to Indenture Trustee or
its nominee or custodian by physical delivery to Indenture Trustee or its
nominee or custodian endorsed to, or registered in the name of, Indenture
Trustee or its nominee or custodian or endorsed in blank, and, with respect
to a "certificated security" (as defined in Section 8-102 of the UCC)
transfer thereof (i) by delivery of such certificated security endorsed to,
or registered in the name of, Indenture Trustee or its nominee or custodian
or endorsed in blank to a financial intermediary (as defined in Section
8-313 of the UCC, and which may be the Indenture Trustee or The Bank of New
York and the making by such "financial intermediary" of entries on its
books and records identifying such certificated securities as belonging to
Indenture Trustee or its nominee or custodian and the
Appendix X, Page 8
sending by such financial intermediary of a confirmation of the purchase of
such certificated security by Indenture Trustee or its nominee or
custodian, or (ii) by delivery thereof to a "clearing corporation" (as
defined in Section 8-102(3) of the UCC) and the making by such clearing
corporation of appropriate entries on its books reducing the appropriate
securities account of the transferor and increasing the appropriate
securities account of a financial intermediary by the amount of such
certificated security, the identification by the clearing corporation of
the certificated securities for the sole and exclusive account of the
financial intermediary, the maintenance of such certificated securities by
such clearing corporation or a "custodian bank" (as defined in Section
8-102(4) of the UCC) or the nominee of either subject to the clearing
corporation's exclusive control, the sending of a confirmation by the
financial intermediary of the purchase by Indenture Trustee or its nominee
or custodian of such securities and the making by such financial
intermediary of entries on its books and records identifying such
certificated securities as belonging to Indenture Trustee or its nominee or
custodian (all of the foregoing, "Physical Property"), and, in any event,
any such Physical Property in registered form shall be in the name of
Indenture Trustee or its nominee or custodian; and such additional or
alternative procedures as may hereafter become appropriate to effect the
complete transfer of ownership of any such Trust Account Property to
Indenture Trustee or its nominee or custodian, consistent with changes in
applicable law or regulations or the interpretation thereof;
(b) with respect to any securities issued by the U.S. Treasury, the
Federal Home Loan Mortgage Corporation or by the Federal National Mortgage
Association that is a book-entry security held through the Federal Reserve
System pursuant to Federal book-entry regulations, the following
procedures, all in accordance with applicable law, including applicable
Federal regulations and Articles 8 and 9 of the UCC: book-entry
registration of such Trust Account Property to an appropriate book-entry
account maintained with a Federal Reserve Bank by a financial intermediary
which is also a "depository" pursuant to applicable Federal regulations and
issuance by such financial intermediary of a deposit advice or other
written confirmation of such book-entry registration to Indenture Trustee
or its nominee or custodian of the purchase by Indenture Trustee or its
nominee or custodian of such book-entry securities; the making by such
financial intermediary of entries in its books and records identifying such
book entry security held through the Federal Reserve System pursuant to
Federal book-entry regulations as belonging to Indenture Trustee or its
nominee or custodian and indicating that such custodian holds such Trust
Account Property solely as agent for Indenture Trustee or its nominee or
custodian; and such additional or alternative procedures as may hereafter
become appropriate to effect complete transfer of ownership of any such
Trust Account Property to Indenture Trustee or its nominee or custodian,
consistent with changes in applicable law or regulations or the
interpretation thereof; and
(c) with respect to any item of Trust Account Property that is an
uncertificated security under Article 8 of the UCC and that is not governed
by clause (b) above, registration on the books and records of the issuer
thereof in the name of the financial intermediary, the sending of a
confirmation by the financial intermediary of the purchase by Indenture
Trustee or its nominee or custodian of such uncertificated security and the
making
Appendix X, Page 9
by such financial intermediary of entries on its books and records
identifying such uncertificated certificates as belonging to Indenture
Trustee or its nominee or custodian.
"Deposit Date" means, with respect to any Collection Period, the Business
Day preceding the related Distribution Date.
"Depositor" means Seller in its capacity as Depositor under the Trust
Agreement.
"Determination Date" means with respect to any Collection Period, the
Business Day preceding the related Distribution Date by two Business Days.
"Distribution Date" means the 15th day of each month (or, if the 15th day
is not a Business Day, the next succeeding Business Day), commencing November
15, 2000.
"Dollar" and the sign "$" mean lawful money of the United States.
"Eligible Deposit Account" means either (a) a segregated account with an
Eligible Institution or (b) a segregated trust account with the corporate trust
department of a depository institution acting in its fiduciary capacity
organized under the laws of the United States of America or any one of the
states thereof or the District of Columbia (or any domestic branch of a foreign
bank), having corporate trust powers and acting as trustee for funds deposited
in such account, so long as the long-term unsecured debt of such depository
institution shall have a credit rating from each Rating Agency in one of its
generic rating categories which signifies investment grade. Any such trust
account may be maintained with the Owner Trustee, Indenture Trustee or any of
their respective Affiliates and any such trust account (other than the Reserve
Account) may be maintained with AmSouth Bank, or any of its Affiliates, if such
accounts meet the requirements described in clause (b) of the preceding
sentence.
"Eligible Institution" means a depository institution (which may be
Servicer, Owner Trustee or Indenture Trustee, or any of their respective
Affiliates) organized under the laws of the United States of America or any one
of the states thereof or the District of Columbia (or any domestic branch of a
foreign bank), (a) which has (i) either a long-term senior unsecured debt rating
of AA-or a short-term senior unsecured debt or certificate of deposit rating of
A-1+ or better by Standard & Poor's and (ii)(A) a short-term senior unsecured
debt rating of A-l or better by Standard & Poor's and (B) a short-term senior
unsecured debt rating of P-1 or better by Moody's, or any other long-term,
short-term or certificate of deposit rating acceptable to the Rating Agencies
and (b) whose deposits are insured by the Federal Deposit Insurance Corporation.
If so qualified, Servicer, any Affiliate of Servicer, Owner Trustee or Indenture
Trustee may be considered an Eligible Institution.
"Eligible Investments" shall mean any one or more of the following types of
investments:
(a) direct obligations of, and obligations fully guaranteed as to
timely payment by, the United States of America;
Appendix X, Page 10
(b) demand deposits, time deposits or certificates of deposit of any
depository institution (including any Affiliate of Seller and the Indenture
Trustee, Owner Trustee or any Affiliate of Indenture Trustee or Owner
Trustee) or trust company incorporated under the laws of the United States
of America or any state thereof or the District of Columbia (or any
domestic branch of a foreign bank) and subject to supervision and
examination by Federal or state banking or depository institution
authorities (including depository receipts issued by any such institution
or trust company as custodian with respect to any obligation referred to in
clause (a) above or a portion of such obligation for the benefit of the
holders of such depository receipts); provided that at the time of the
investment or contractual commitment to invest therein (which shall be
deemed to be made again each time funds are reinvested following each
Distribution Date), the commercial paper or other short-term senior
unsecured debt obligations (other than such obligations the rating of which
is based on the credit of a Person other than such depository institution
or trust company) of such depository institution or trust company shall
have a credit rating from Standard & Poor's of A-1+ and from Moody's of
P-1;
(c) commercial paper (including commercial paper of any Affiliate of
Seller and the Indenture Trustee, Owner Trustee or any Affiliate of
Indenture Trustee or Owner Trustee) having, at the time of the investment
or contractual commitment to invest therein, a rating from Standard &
Poor's of A-1+ and from Moody's of P-1;
(d) investments in money market funds (including funds for which
Indenture Trustee or Owner Trustee or any of their respective Affiliates or
any of Seller's Affiliates is investment manager or advisor) having a
rating from Standard & Poor's of AAA-m or AAAm-G and from Moody's of Aaa;
(e) bankers' acceptances issued by any depository institution or trust
company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that is a
direct obligation of, or fully guaranteed by, the United States of America
or any agency or instrumentality thereof the obligations of which are
backed by the full faith and credit of the United States of America, in
either case entered into with a depository institution or trust company
(acting as principal) referred to in clause (b) above; and
(g) any other investment with respect to which each Rating Agency has
provided written notice that such investment would not cause such Rating
Agency to downgrade, qualify or withdraw its then current rating of any
class of Notes.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"Event of Default" is defined in Section 5.1 of the Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
Appendix X, Page 11
"Executive Officer" means, with respect to any corporation, the Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer, Chief
Accounting Officer, President, Executive Vice President, any Vice President, the
Secretary or the Treasurer of such corporation; and with respect to any limited
liability company or partnership, a similar official with respect to any direct
or indirect member or general partner thereof.
"Financed Vehicle" means a new or used automobile or light duty truck,
together with all accessions thereto, securing an Obligor's indebtedness under
the respective Receivable.
"First Priority Principal Distribution Amount" shall mean, with respect to
any Distribution Date, an amount equal to the excess, if any, of (a) the
aggregate outstanding principal amount of the Class A Notes as of the preceding
Distribution Date (after giving effect to any principal payments made on the
Class A Notes on such preceding Distribution Date) over (b) the Pool Balance at
the end of the Collection Period preceding such Distribution Date; provided,
however, that the First Priority Principal Distribution Amount shall not exceed
the sum of the aggregate outstanding principal amount of all of the Notes on
such Distribution Date (prior to giving effect to any principal payments made on
the Notes on such Distribution Date); and provided, further, that the First
Priority Principal Distribution Amount on and after the Final Scheduled
Distribution Date of a Class of Class A Notes shall not be less than the amount
that is necessary to reduce the outstanding principal amount of such Class of
Class A Notes and all earlier maturing classes of Class A Notes to zero.
"GAAP" is defined in Section 10.1 of the Sale and Servicing Agreement.
"Grant" means mortgage, pledge, bargain, sell, warrant, alienate, remise,
release, convey, assign, transfer, create, xxxxx x xxxx upon and a security
interest in and right of set-off against, deposit, set over and confirm pursuant
to the Indenture. A Grant of the Collateral or of any other agreement or
instrument shall include all rights, powers and options (but none of the
obligations) of the Granting party thereunder, including the immediate and
continuing right to claim for, collect, receive and give receipt for principal
and interest payments in respect of the Collateral and all other moneys payable
thereunder, to give and receive notices and other communications, to make
waivers or other agreements, to exercise all rights and options, to bring
proceedings in the name of the Granting party or otherwise and generally to do
and receive anything that the Granting party is or may be entitled to do or
receive thereunder or with respect thereto. Other forms of the verb "to Grant"
shall have correlative meanings.
"Holder" means, as the context may require, a Certificateholder or a
Noteholder or both.
"Indemnified Parties" is defined in Section 8.2 of the Trust Agreement.
"Indenture" means the Indenture dated as of October 1, 2000, between Issuer
and Indenture Trustee, as the same may be amended and supplemented from time to
time.
Appendix X, Page 12
"Indenture Trustee" means The Bank of New York Trust Company of Florida,
National Association, not in its individual capacity but as trustee under the
Indenture, or any successor trustee under the Indenture.
"Independent" means, when used with respect to any specified Person, that
the person (a) is in fact independent of Issuer, any other obligor upon the
Notes, Seller and any Affiliate of any of the foregoing persons, (b) does not
have any direct financial interest or any material indirect financial interest
(other than less than 5% of the outstanding amount of any publicly traded
security) in Issuer, any such other obligor, Seller or any Affiliate of any of
the foregoing Persons and (c) is not connected with Issuer, any such other
obligor, Seller or any Affiliate of any of the foregoing Persons as an officer,
employee, promoter, underwriter, trustee, partner, director or Person performing
similar functions.
"Independent Certificate" means a certificate or opinion to be delivered to
Indenture Trustee under the circumstances described in, and otherwise complying
with, the applicable requirements of Section 11.1 of the Indenture, made by an
Independent appraiser or other expert appointed by an Issuer Order and approved
by the Administrator in the exercise of reasonable care, and such opinion or
certificate shall state that the signer has read the definition of "Independent"
in the Indenture and that the signer is Independent within the meaning thereof.
"Initial Principal Balance" means, in respect of a Receivable, the amount
advanced under the Receivable toward the purchase price of the Financed Vehicle
and related costs, including accessories, service and warranty contracts,
insurance premiums, other items customarily financed as part of retail motor
vehicle loans and/or retail installment sales contracts and other fees charged
by AmSouth Bank or the applicable Dealer and included in the amount to be
financed, the total of which is shown as the initial principal balance in the
note and security agreement or retail installment sale contract evidencing and
securing such Receivable.
"Insolvency Event" means, for a specified Person, (a) the filing of a
decree or order for relief by a court having jurisdiction in the premises in
respect of such Person or any substantial part of its property in an involuntary
case under any applicable Federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver (including any
receiver appointed under the Financial Institutions Reform, Recovery and
Enforcement Act of 1989, as amended), liquidator, assignee, custodian, trustee,
sequestrator or similar official for such Person or for any substantial part of
its property, or ordering the winding-up or liquidation of such Person's
affairs, and such decree or order shall remain unstayed and in effect for a
period of 60 consecutive days; or (b) the commencement by such Person of a
voluntary case under any applicable Federal or state bankruptcy, insolvency or
other similar law now or hereafter in effect, or the consent by such Person to
the entry of an order for relief in an involuntary case under any such law, or
the consent by such Person to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official for such Person or for any substantial part of its property, or the
making by such Person of any general assignment for the benefit of creditors, or
the failure by such Person generally to pay its debts as such debts become due,
or the taking of action by such Person in furtherance of any of the foregoing.
Appendix X, Page 13
"Insurance Policies" means, all credit life and disability insurance
policies maintained by the Obligors and all Physical Damage Insurance Policies.
"Interest Distribution Account" shall mean the administrative subaccount of
the Note Distribution Account established and maintained as such pursuant to
Section 5.1 of the Sale and Servicing Agreement.
"Interest Period" shall mean, with respect to any Distribution Date (i)
with respect to the Class A-1 Notes from and including the Closing Date (in the
case of the first Distribution Date) or from and including the most recent
Distribution Date on which interest has been paid to but excluding the following
Distribution Date and (ii) with respect to each Class of Notes other than the
Class A-1 Notes from and including the Closing Date (in the case of the first
Distribution Date) or from and including the fifteenth day of the calendar
month preceding each Distribution Date to but excluding the fifteenth day of
the following calendar month.
"Interest Rate" means, with respect to the (a) Class A-1 Notes, the Class
A-1 Interest Rate, (b) Class A-2 Notes, the Class A-2 Interest Rate, (c) Class
A-3 Notes, the Class A-3 Interest Rate, (d) Class A-4 Notes, the Class A-4
Interest Rate, (e) Class B Notes, the Class B Interest Rate and (f) Class C
Notes, the Class C Interest Rate.
"IRS" shall mean the Internal Revenue Service.
"Issuer" means AmSouth Auto Trust 2000-1.
"Issuer Order" and "Issuer Request" means a written order or request signed
in the name of Issuer by any one of its Authorized Officers and delivered to
Indenture Trustee.
"Lien" means a security interest, lien, charge, pledge, preference,
participation interest or encumbrance of any kind, other than liens for taxes
not yet due and payable, mechanics' or materialmen's liens and other liens for
work, labor or materials, and any other liens that may attach by operation of
law.
"Liquidation Proceeds" means, with respect to any Receivable that has
become a Defaulted Receivable, (a) insurance proceeds received by Servicer with
respect to the Insurance Policies, (b) amounts received by Servicer in
connection with such Defaulted Receivable pursuant to the exercise of rights
under that Receivable and (c) the monies collected by Servicer (from whatever
source, including proceeds of a sale of a Financed Vehicle, a deficiency balance
recovered after the charge-off of the related Receivable or as a result of any
Dealer Recourse) on such Defaulted Receivable net of any expenses incurred by
Servicer in connection therewith and any payments required by law to be remitted
to the Obligor.
"Moody's" means Xxxxx'x Investors Service, Inc., or its successor.
"Motor Vehicle" means a new or used automobile or light duty truck.
Appendix X, Page 14
"Motor Vehicle Loan" means retail installment sales contract secured by a
Motor Vehicle originated by a Dealer and purchased by AmSouth Bank.
"Note" means a Class A Note, Class B Note or Class C Note.
"Note Distribution Account" means the account designated as such,
established and maintained as such pursuant to Section 5.1 of the Sale and
Servicing Agreement.
"Note Depository Agreement" means the letter of representations among the
Issuer, the Note Paying Agent and The Depository Trust Company, as the initial
Clearing Agency, dated as of the Closing Date, relating to the Notes, as the
same may be amended or supplemented from time to time.
"Note Owner" means, with respect to a Book-Entry Note, the person who is
the owner of such Book-Entry Note, as reflected on the books of the Clearing
Agency, or on the books of a Person maintaining an account with such Clearing
Agency (directly as a Clearing Agency Participant or as an indirect participant,
in each case in accordance with the rules of such Clearing Agency).
"Note Paying Agent" shall mean the Indenture Trustee or any other Person
that meets the eligibility standards for the Indenture Trustee specified in
Section 6.11 of the Indenture and is authorized by the Issuer to make payments
to and distributions from the Trust Accounts, including payment of principal of
or interest on the Notes on behalf of the Issuer.
"Note Pool Factor" for each class of Notes as of the close of business on a
Distribution Date means a seven-digit decimal figure equal to the outstanding
principal balance of such class of Notes divided by the original outstanding
principal balance of such class of Notes. The Note Pool Factor for each class of
Notes will be 1.0000000 as of the Cutoff Date; thereafter, the Note Pool Factor
for each class of Notes will decline to reflect reductions in the outstanding
principal balance of such class of Notes.
"Noteholder" means the Person in whose name a Note is registered on the
Note Register.
"Note Register" and "Note Registrar" are defined in Section 2.4 of the
Indenture.
"Obligor" means, with respect to a Receivable, the borrower or co-borrowers
under the related Receivable and any co-signer of the Receivable or other Person
who owes or may be primarily or secondarily liable for payments under such
Receivable.
"Officer's Certificate" means: (a) for purposes of the Indenture, a
certificate signed by any Authorized Officer of Issuer, under the circumstances
described in, and otherwise complying with, the applicable requirements of
Section 11.1 and TIA (S) 314, and delivered to Indenture Trustee; and (b)
otherwise, a certificate signed by the chairman, the president, any vice
president or the treasurer of Seller or Servicer, as the case may be, and
delivered to Indenture Trustee. Unless otherwise
Appendix X, Page 15
specified, any reference in the Indenture to an Officer's Certificate shall be
to an Officer's Certificate of any Authorized Officer of Issuer.
"Opinion of Counsel" means one or more written opinions of counsel who may,
except as otherwise expressly provided in the Indenture, be employees of or
counsel to Issuer and who shall be satisfactory to Issuer, Owner Trustee or
Indenture Trustee, as applicable, and which opinion or opinions shall be
addressed to Issuer, Owner Trustee, or Indenture Trustee, as applicable and
shall be in form and substance satisfactory to the Issuer, Owner Trustee, and
Indenture Trustee, as applicable.
"Original Pool Balance" means the Pool Balance as of the Cutoff Date, which
is $950,415,639.
"Outstanding" means, as of the date of determination, all Notes theretofore
authenticated and delivered under the Indenture except:
(a) Notes theretofore canceled by Note Registrar or delivered to Note
Registrar for cancellation;
(b) Notes or portions thereof the payment for which money in the
necessary amount has been theretofore deposited with Indenture Trustee or
any Paying Agent in trust for the Holders of such Notes (provided that if
such Notes are to be redeemed, notice of such redemption has been duly
given pursuant to the Indenture or provision therefor, satisfactory to
Indenture Trustee); and
(c) Notes in exchange for or in lieu of other Notes which have been
authenticated and delivered pursuant to the Indenture unless proof
satisfactory to Indenture Trustee is presented that any such Notes are held
by a bona fide purchaser;
provided that in determining whether the Holders of the requisite Outstanding
Amount of the Notes have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or under any Basic Document, Notes owned by
Issuer, any other obligor upon the Notes, Seller or any Affiliate of any of the
foregoing Persons shall be disregarded and deemed not to be Outstanding, except
that, in determining whether Indenture Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Notes that a Responsible Officer of Indenture Trustee either
actually knows to be so owned or has received written notice thereof shall be so
disregarded. Notes so owned that have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of Indenture
Trustee the pledgee's right so to act with respect to such Notes and that the
pledgee is not Issuer, any other obligor upon the Notes, Seller or any Affiliate
of any of the foregoing Persons.
"Outstanding Amount" means the aggregate principal amount of all Notes, or
class of Notes, as applicable, Outstanding at the date of determination.
Appendix X, Page 16
"Owner Trust Estate" means all right, title and interest of Issuer in and
to the property and rights assigned to Issuer pursuant to Article II of the Sale
and Servicing Agreement, all funds on deposit from time to time in the Trust
Accounts and the Certificate Distribution Account and all other property of
Issuer from time to time, including any rights of Owner Trustee and Issuer
pursuant to the Sale and Servicing Agreement.
"Owner Trustee" means The Chase Manhattan Bank, a bank holding company
incorporated in the State of New York, not in its individual capacity but solely
as owner trustee under the Trust Agreement, and any successor Owner Trustee
hereunder.
"Paying Agent" means: (a) when used in the Indenture or otherwise with
respect to the Notes, Indenture Trustee or any other Person that meets the
eligibility standards for Indenture Trustee specified in Section 6.11 of the
Indenture and is authorized by Issuer to make the payments to and distributions
from the Collection Account and the Note Distribution Account, including payment
of principal of or interest on the Notes on behalf of Issuer; and (b) when used
in the Trust Agreement or otherwise with respect to the Certificates, Owner
Trustee or any other paying agent or co-paying agent appointed pursuant to
Section 3.9 of the Trust Agreement.
"Person" means a legal person, including any individual, corporation,
estate, partnership, limited liability company, joint venture, association,
joint stock company, trust, unincorporated organization, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Physical Damage Insurance Policy" means a theft and physical damage
insurance policy maintained by the Obligor under a Receivable, providing
coverage against loss or damage to or theft of the related Financed Vehicle.
"Physical Property" is defined in the definition of "Delivery" above.
"Pool Balance" means, at any time, the aggregate Principal Balance of the
Receivables (excluding Purchased Receivables and Defaulted Receivables) at such
time.
"Predecessor Note" means, with respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 2.5 of the Indenture in lieu of a
mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Note.
"Principal Balance" means, as of any time, for any Receivable, the
principal balance of such Receivable under the terms of the Receivable
determined in accordance with the Servicer's customary practices.
Appendix X, Page 17
"Principal Distribution Account" shall mean the administrative subaccount
of the Note Distribution Account established and maintained as such pursuant to
Section 5.1 of the Sale and Servicing Agreement.
"Proceeding" means any suit in equity, action at law or other judicial or
administrative proceeding.
"Purchase Agreement" means the agreement dated as of October 1, 2000
between AmSouth Bank and Seller under which AmSouth Bank sold the Receivables to
Seller.
"Purchase Amount" of any Receivable means, with respect to any Deposit Date
and the last day of the related Collection Period, an amount equal to the sum of
(a) the outstanding Principal Balance of such Receivable as of the last day of
such Collection Period and (b) the amount of accrued and unpaid interest on such
Principal Balance at the related Contract Rate from the date a payment was last
made by or on behalf of the Obligor through and including the last day of such
Collection Period, in each case after giving effect to the receipt of monies
collected on such Receivable in such Collection Period.
"Purchased Receivable" means a Receivable purchased as of the close of
business on the last day of a Collection Period by Servicer pursuant to Section
4.7 of the Sale and Servicing Agreement or repurchased by Seller pursuant to
Section 3.3 of the Sale and Servicing Agreement.
"Rating Agencies" means Moody's and Standard & Poor's.
"Rating Agency Condition" means, with respect to any action, that each
Rating Agency shall have been given 10 days' prior notice thereof (or such
shorter period as shall be acceptable to the Rating Agencies) and that none of
the Rating Agencies shall have notified Seller, Servicer, Owner Trustee or
Indenture Trustee in writing that such action will, in and of itself, result in
a reduction, qualification or withdrawal of the then current rating of any class
of Notes, or the Certificates.
"Receivable" means each Motor Vehicle Loan described in the Schedule of
Receivables, but excluding (i) Defaulted Receivables to the extent the Principal
Balances thereof have been deposited in the Collection Account and (ii) any
Purchased Receivables.
"Receivable Files" is defined in Section 3.4 of the Sale and Servicing
Agreement.
"Record Date" means, with respect to any Distribution Date or Redemption
Date, the close of business on the day immediately preceding such Distribution
Date or Redemption Date; or, if Definitive Notes or Definitive Certificates have
been issued, the last day of the month preceding such Distribution Date or
Redemption Date.
"Redemption Date" means in the case of a redemption of the Notes pursuant
to Section 10.1(a) of the Indenture or a payment to Noteholders pursuant to
Section 10.1(b) of the Indenture, the Distribution Date specified by Servicer or
Issuer pursuant to such Section 10.1(a) or (b).
Appendix X, Page 18
"Redemption Price" means, in the case of a redemption of the Notes pursuant
to Section 10.1(a) of the Indenture, an amount equal to the unpaid principal
amount of the then outstanding Notes plus accrued and unpaid interest thereon to
but excluding the Redemption Date.
"Regular Principal Distribution Amount" shall mean, with respect to any
Distribution Date, an amount not less than zero equal to (x) the greater of (i)
aggregate outstanding principal amount of the Class A-1 Notes as of the
preceding Distribution Date (after giving effect to any principal payments made
on the Class A-1 Notes on such preceding Distribution Date) or the Closing Date,
as the case may be; and (ii) the excess, if any, of (a) the sum of the aggregate
outstanding principal amount of all the Notes as of the preceding Distribution
Date (after giving effect to any principal payments made on the Notes on such
preceding Distribution Date) or the Closing Date, as the case may be, over (b)
the Pool Balance at the end of the Collection Period preceding such Distribution
Date less the Specified Overcollateralization Amount with respect to such
Distribution Date, minus (y) the sum of the First Priority Principal
Distribution Amount, if any, and the Second Priority Principal Distribution
Amount, if any, each with respect to such Distribution Date; provided, however,
that the Regular Principal Distribution Amount shall not exceed the sum of the
aggregate outstanding principal amount of all of the Notes on such Distribution
Date (after giving effect to any principal payments made on the Notes on such
Distribution Date in respect of the First Priority Principal Distribution
Amount, if any, and the Second Priority Principal Distribution Amount, if any);
and provided, further that the Regular Principal Distribution Amount on or after
the Class C Final Scheduled Distribution Date shall not be less than the amount
that is necessary to reduce the outstanding principal amount of the Class C
Notes to zero;
"Related Agreements" shall have the meaning specified in the recitals to
the Administration Agreement.
"Required Rating" means a rating with respect to short term deposit
obligations of at least P-1 by Moody's and at least A-1 by Standard & Poor's.
"Reserve Account" means the account designated as such, established and
maintained pursuant to Section 5.8 of the Sale and Servicing Agreement.
"Reserve Account Deposit" means an amount equal to $7,128,117.29.
"Reserve Account Excess Amount" means, with respect to any Distribution
Date, means an amount equal to the excess, if any, of (a) the amount of cash or
other immediately available funds in the Reserve Account on that Distribution
Date, prior to giving effect to any withdrawals from the Reserve Account
relating to that Distribution Date, over (b) the Specified Reserve Account
Balance with respect to that Distribution Date.
"Reserve Account Property" means the Reserve Account, the Reserve Account
Deposit and all proceeds of the Reserve Account and the Reserve Account Deposit,
including all securities, investments, general intangibles, financial assets and
investment property from time to time credited to and any security entitlement
to the Reserve Account.
Appendix X, Page 19
"Reserve Account Transfer Amount" means, with respect to any Distribution
Date, an amount equal to the lesser of (a) the amount of cash or other
immediately available funds on deposit in the Reserve Account on such
Distribution Date (after giving effect to any withdrawal of the Reserve Account
Excess Amount on such Distribution Date, but before giving effect to any other
withdrawals therefrom relating to such Distribution Date) and (b) the amount, if
any, by which (i) the Total Required Payments for such Distribution Date exceeds
(ii) the Available Funds for such Distribution Date.
"Responsible Officer" means, with respect to Indenture Trustee, any officer
within the Corporate Trust Office of Indenture Trustee and having responsibility
with respect to the Notes and the other Basic Documents, including any Vice
President, Assistant Vice President, Assistant Treasurer, Assistant Secretary,
or any other officer of Indenture Trustee customarily performing functions
similar to those performed by any of the above designated officers and also,
with respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement among
Issuer, Indenture Trustee, AmSouth Bank, as Servicer, and AmSouth Auto
Receivables LLC, as Seller, dated as of October 1, 2000, as the same may be
amended and supplemented from time to time.
"Schedule of Receivables" means, with respect to the Motor Vehicle Loans to
be conveyed to Seller by AmSouth Bank and to Issuer by Seller, the list
identifying such Motor Vehicle Loans delivered to Indenture Trustee at the
Closing.
"Second Priority Principal Distribution Amount" shall mean, with respect to
any Distribution Date, an amount not less than zero equal to (i) the excess, if
any, of (a) the sum of the aggregate outstanding principal amount of the Class A
Notes and Class B Notes as of the preceding Distribution Date (after giving
effect to any principal payments made on the Class A Notes and Class B Notes on
such preceding Distribution Date) over (b) the Pool Balance at the end of the
Collection Period preceding such Distribution Date, minus (ii) the First
Priority Principal Distribution Amount, if any, with respect to such
Distribution Date; provided, however, that the Second Priority Principal
Distribution Amount shall not exceed the aggregate outstanding principal amount
of the Notes on such Distribution Date (after giving effect to any principal
payments made on the Notes on such Distribution Date in respect of the First
Priority Principal Distribution Amount, if any); and provided, further that the
Second Priority Principal Distribution Amount on or after the Class B Final
Scheduled Distribution Date shall not be less than the amount that is necessary
to reduce the outstanding principal amount of the Class B Notes to zero.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Securities Intermediary" is defined in Section 5.8 of the Sale and
Servicing Agreement.
"Seller" means AmSouth Auto Receivables LLC, a Delaware corporation, and
any successor pursuant to Section 6.4 of the Sale and Servicing Agreement.
Appendix X, Page 20
"Servicer" means AmSouth Bank and each Successor Servicer.
"Servicer Termination Event" means an event specified in Section 8.1 of the
Sale and Servicing Agreement.
"Servicer's Report" means a report of Servicer delivered pursuant to
Section 4.9 of the Sale and Servicing Agreement, substantially in the form of
Exhibit C to that agreement.
"Servicing Fee" is defined in Section 4.8 of the Sale and Servicing
Agreement.
"Servicing Fee Rate" means 1.00% per annum.
"Simple Interest Method" means the method of allocating a fixed level
payment monthly installments between principal and interest, pursuant to which
such payment is allocated first to accrued and unpaid interest at the Contract
Rate on the unpaid principal balance and the remainder of such payment is
allocable to principal.
"Simple Interest Receivable" means any Receivable under which the portion
of a payment allocable to interest and the portion allocable to principal is
determined in accordance with the Simple Interest Method.
"Specified Credit Enhancement Amount" means, for any Distribution Date, the
greatest of (i) $7,128,117.29, (ii) 3.25% of the Pool Balance at the end of the
related Collection Period, or (iii) the aggregate principal balance of the
Receivables that are delinquent 90 or more days and are not Defaulted
Receivables at the end of the Collection Period preceding such Distribution
Date; provided, however, that the Specified Credit Enhancement Amount with
respect to any Distribution Date shall not exceed the sum of the aggregate
outstanding principal amount of all the Notes as of the preceding Distribution
Date (after giving effect to any principal payments made on the Notes on such
preceding Distribution Date).
"Specified Overcollateralization Amount" means, for any Distribution Date,
the excess, if any, of (a) the Specified Credit Enhancement Amount with respect
to such Distribution Date, over (b) the Specified Reserve Account Balance with
respect to such Distribution Date.
"Specified Reserve Account Balance" means, for any Distribution Date, the
lesser of (a) $7,128,117.29 and (b) the aggregate outstanding principal amount
of the Notes (after giving effect to any distributions on the Notes on such
Distribution Date).
"Standard & Poor's" means Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc., or its successor.
"State" means any one of the 50 states of the United States of America or
the District of Columbia.
Appendix X, Page 21
"Successor Servicer" is defined in Section 3.7(e) of the Indenture.
"Supplemental Servicing Fee" is defined in Section 4.8 of the Sale and
Servicing Agreement.
"Total Distribution Amount" means, for each Distribution Date, the sum of
(a) the Available Funds, and (b) the Reserve Account Transfer Amount, in each
case in respect of such Distribution Date.
"Total Required Payment" shall mean, with respect to any Distribution Date,
the sum of the Servicing Fee and all unpaid Servicing Fees from prior Collection
Periods, the Accrued Class A Note Interest, the First Priority Principal
Distribution Amount, the Accrued Class B Note Interest, the Second Priority
Principal Distribution Amount and the Accrued Class C Note Interest and on and
after the Class C Final Scheduled Distribution Date, an amount that is necessary
to reduce the outstanding principal amount of the Class C Notes to zero;
provided, however, that following the occurrence and during the continuation of
an Event of Default which has resulted in an acceleration of the Notes, on any
Distribution Date until the Distribution Date on which the outstanding principal
amount of all the Notes has been paid in full, the Total Required Payment shall
mean the sum of the Servicing Fee and all unpaid Servicing Fees from prior
Collection Periods, the Accrued Class A Note Interest, the Accrued Class B Note
Interest, the Accrued Class C Note Interest and the amount necessary to reduce
the outstanding principal amount of all the Notes to zero.
"Treasury Regulations" means regulations, including proposed or temporary
regulations, promulgated under the Code.
"Trust" shall mean AmSouth Auto Trust 2000-1, a New York common law trust
established pursuant to the Trust Agreement.
"Trust Accounts" is defined in Section 5.1 of the Sale and Servicing
Agreement.
"Trust Account Property" means the Trust Accounts, all amounts and
investments held from time to time in any Trust Account (whether in the form of
deposit accounts, Physical Property, book-entry securities, uncertificated
securities or otherwise), and all proceeds of the foregoing.
"Trust Agreement" means the Amended and Restated Trust Agreement dated as
of October 1, 2000, between Depositor and Owner Trustee, as the same may be
amended and supplemented from time to time.
"Trust Estate" means all money, instruments, rights and other property that
are subject or intended to be subject to the lien and security interest of the
Indenture for the benefit of the Noteholders (including all property and
interests Granted to Indenture Trustee), including all proceeds thereof.
Appendix X, Page 22
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939 and
the rules and regulations promulgated thereunder, as in force on the date
hereof, unless otherwise specifically provided.
"Trust Property" shall have the meaning set forth in Section 2.1 of the
Sale and Servicing Agreement.
"UCC" means the Uniform Commercial Code, as in effect in the relevant
jurisdiction.
Appendix X, Page 23
