EXHIBIT 99.3
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PURCHASE AGREEMENT
BETWEEN
[NAME OF SELLER AFFILIATE]
AS
SELLER
AND
AMSOUTH AUTOCORP, INC.
AS
PURCHASER
DATED AS OF ___________, 199__
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions................................................................. 1
SECTION 1.2. Other Interpretive Provisions............................................... 1
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
SECTION 2.1. Purchase and Sale of Receivables............................................ 2
SECTION 2.2. Receivables Purchase Price.................................................. 3
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of Seller.................................... 4
SECTION 3.2. Representations and Warranties as to Each Receivable........................ 5
SECTION 3.3. Repurchase upon Breach...................................................... 9
ARTICLE IV
COVENANTS OF SELLER
SECTION 4.1. Protection of Title to Seller Assets........................................ 10
SECTION 4.2. Liability of Seller; Indemnities............................................ 12
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1. Obligations of Seller....................................................... 13
SECTION 5.2. Seller's Assignment of Purchased Receivables................................ 13
SECTION 5.3. Subsequent Transfer to Issuer and Indenture Trustee......................... 13
SECTION 5.4. Amendment................................................................... 14
SECTION 5.5. Waivers..................................................................... 16
SECTION 5.6. Notices..................................................................... 16
SECTION 5.7. Costs and Expenses.......................................................... 16
SECTION 5.8. Representations to Seller................................................... 16
SECTION 5.9. Governing Law............................................................... 16
SECTION 5.10. Counterparts................................................................ 17
PURCHASE AGREEMENT
This PURCHASE AGREEMENT (as from time to time amended, supplemented or
otherwise modified and in effect, this "Agreement") is made as of this ___th day
of ___________, 199__ by and between [NAME OF SELLER AFFILIATE], a national
banking association (the "Seller"), and AMSOUTH AUTOCORP, INC., a Delaware
corporation (the "Purchaser").
WHEREAS, in the regular course of its business, Seller purchases or
originates Motor Vehicle Loans secured by new and used automobiles and light
trucks from motor vehicle dealers;
WHEREAS, Purchaser desires to purchase from Seller a portfolio of Motor
Vehicle Loans arising in connection with Motor Vehicle Loans purchased by the
Seller from Dealers or originated by Seller; and
WHEREAS, Seller is willing to sell such Motor Vehicle Loans to Purchaser.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. Capitalized terms are used in this Agreement as
defined in Appendix X to the Sale and Servicing Agreement among the AmSouth Auto
Trust 199__-__, as issuer, the Purchaser, as seller, and AmSouth Bank, as
servicer, except that references in Appendix X to the "Seller" shall be deemed
to be references to Purchaser hereunder and references to a "Seller Affiliate"
shall be deemed to be references to the Seller hereunder.
SECTION 1.2. Other Interpretive Provisions. For purposes of this
Agreement, unless the context otherwise requires: (a) accounting terms not
otherwise defined in this Agreement, and accounting terms partly defined in this
Agreement to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles; (b) terms defined in
Article 9 of the UCC and not otherwise defined in this Agreement are used as
defined in that Article; (c) the words "hereof," "herein" and "hereunder" and
words of similar import refer to this Agreement as a whole
PURCHASE AGREEMENT
and not to any particular provision of this Agreement; (d) references to any
Article, Section, Schedule or Exhibit are references to Articles, Sections,
Schedules and Exhibits in or to this Agreement and references to any paragraph,
subsection, clause or other subdivision within any Section or definition refer
to such paragraph, subsection, clause or other subdivision of such Section or
definition; (e) the term "including" means "including without limitation"; (f)
except as otherwise expressly provided herein, references to any law or
regulation refer to that law or regulation as amended from time to time and
include any successor law or regulation; (g) references to any Person include
that Person's successors and assigns; and (h) headings are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
SECTION 2.1. Purchase and Sale of Receivables.
Effective as of the Closing Date and immediately prior to the transactions
pursuant to the Indenture, the Sale and Servicing Agreement and the Trust
Agreement, Seller does hereby sell, transfer, assign, set over and otherwise
convey to Purchaser, without recourse (subject to the obligations herein) (the
"Seller Assets"):
(i) all right, title and interest of Seller in and to the
Receivables, and all moneys received thereon [on or] after the Cutoff Date;
(ii) 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;
(iii) 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 the Seller as an insured;
(iv) rebates of premiums relating to Insurance Policies and rebates
of other items such as extended warranties financed under the Receivables,
in each case, to the extent the Servicer would, in
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accordance with its customary practices, apply such amounts to the
Principal Balance of the related Receivable;
(v) 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;
(vi) all right, title and interest of Seller in any instrument or
document relating to the Receivables; and
(vii) the proceeds of any and all of the foregoing.
The sale, transfer, assignment, setting over and conveyance made hereunder
shall not constitute and is not intended to result in an assumption by Purchaser
of any obligation of 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.
SECTION 2.2. Receivables Purchase Price. In consideration for the Seller
Assets, Purchaser shall, on the Closing Date, pay to Seller the Receivables
Purchase Price. The "Receivables Purchase Price" shall be an amount equal to
100% of the sum of the following amounts: (i) the aggregate principal balance of
the Seller's Receivables as of the Cutoff Date; (ii) accrued interest on such
Receivables from the last payment date on the Receivables prior to Cutoff Date
and to and including the day immediately preceding the Closing Date; and (iii)
[insert appropriate adjustments]. The Receivables Purchase Price shall be paid
by __________________ same day funds.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of Seller.
Seller hereby makes the following representations and warranties upon which
Purchaser may rely. Such representations are made as of the execution and
delivery of this Agreement, but shall survive the sale, transfer and assignment
of the Receivables to Purchaser.
3 PURCHASE AGREEMENT
(a) Organization and Good Standing. Seller has been duly organized
and is validly existing as ______________________ in good standing under
the laws of _____________________, with the power and authority to own its
properties and to conduct its business as such properties are presently
owned and such business is presently conducted and had at all relevant
times, and has, power, authority and legal right to acquire, own and sell
the Seller Assets pursuant to Article II.
(b) Power and Authority. Seller has the power, authority and legal
right to execute and deliver this Agreement and to carry out its terms and
to sell and assign the Seller Assets; and the execution, delivery and
performance of this Agreement has been duly authorized by Seller by all
necessary corporate action.
(c) No Consent Required. No approval, authorization, consent, license
or other order or action of, or filing or registration with, any
governmental authority, bureau or agency is required in connection with the
execution, delivery or performance of this Agreement or the consummation of
the transactions contemplated hereby or thereby, other than the filing of
UCC financing statements.
(d) Valid Sale; Binding Obligation. Seller intends this Agreement to
effect a valid sale, transfer, and assignment of the Receivables and the
other properties and rights included in the Seller Assets conveyed by
Seller to Purchaser hereunder, enforceable against creditors of and
purchasers from Seller; and this Agreement constitutes a legal, valid and
binding obligation of Seller, enforceable against Seller in accordance with
its terms, subject, as to enforceability, to applicable bankruptcy,
insolvency, reorganization, conservatorship, receivership, liquidation and
other similar laws affecting enforcement of the rights of creditors
generally and to equitable limitations on the availability of specific
remedies.
(e) No Violation. The execution, delivery and performance by Seller
of this Agreement and the consummation of the transactions contemplated
hereby will not conflict with, result in any material breach of any of the
terms and provisions of, constitute (with or without notice or lapse of
time) a material default under or result in the creation or imposition of
any Lien upon any of its material properties pursuant to the terms of, (i)
the _____________ or bylaws of Seller, (ii) any 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,
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administrative agency, or other governmental instrumentality having
jurisdiction over Seller.
(f) 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 or the transactions contemplated
herein, (ii) seeking to prevent the consummation of any of the transactions
by this Agreement, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by Seller of its
obligations under, or the validity or enforceability of, this Agreement or
the transactions contemplated herein, or (iv) that may materially and
adversely affect this Agreement or the transactions contemplated hereby.
(g) Chief Executive Office. The chief executive office of Seller is
set forth in Exhibit A attached hereto.
SECTION 3.2. Representations and Warranties as to Each Receivable.
Seller hereby makes the following representations and warranties as to each
Receivable conveyed by it to Purchaser hereunder on which Purchaser shall rely
in acquiring the Receivables. Unless otherwise indicated, such representations
and warranties shall speak as of the Closing Date, but shall survive the sale,
transfer and assignment of the Receivables to Purchaser hereunder, the sale,
transfer and assignment of the Receivables to Issuer under the Sale and
Servicing Agreement, and the pledge thereof to Indenture Trustee pursuant to the
Indenture.
(a) Characteristics of Receivables. The Receivable has been fully and
properly executed by the parties thereto and (i) is a Direct Loan made by
an Originator or has been originated by a Dealer in the ordinary course of
such Dealer's business and has been purchased by an Originator, in either
case, in the ordinary course of such Originator's business and accordance
with such Originator's underwriting standards to finance the retail sale by
a Dealer of the related Financed Vehicle or has otherwise been acquired by
the Seller, (ii) the Originator of which has underwriting standards that
require physical damage insurance to be maintained on the related Financed
Vehicle, (iii) is secured by a valid, subsisting, binding and enforceable
first priority security interest in favor of the Seller in the Financed
Vehicle (subject to administrative delays and clerical errors on the part
of the applicable government agency and to any statutory or other lien
5 PURCHASE AGREEMENT
arising by operation of law after the Closing Date which is prior to such
security interest), which security interest is assignable together with
such Receivable, and has been so assigned to Purchaser, and subsequently
assigned by Purchaser to the Issuer, (iv) contains customary and
enforceable provisions such that the rights and remedies of the holder
thereof are adequate for realization against the collateral of the benefits
of the security, (v) provided, at origination, for level monthly payments
(provided that the amount of the last payment may be different), which
fully amortize the Initial Principal Balance over the original term, (vi)
provides for interest at the Contract Rate specified in the Schedule of
Receivables, (vii) was originated in the United States and (viii)
constitutes "chattel paper" as defined in the UCC.
(b) Individual Characteristics. The Receivables have the following
individual characteristics as of the Cutoff Date; (i) each Receivable is
secured by either a Motor Vehicle; (ii) each Receivable has a Contract Rate
of at least ____% and not more than ____%; (iii) each Receivable had a
remaining number of scheduled payments, as of the Cutoff Date, of not less
than ____ and not more than ____; (iv) each Receivable had an Initial
Principal Balance of not less than $__________ and not more than
$__________; (v) no Receivable was more than 30 days past due as of the
Cutoff Date; (vi) no Financed Vehicle had been repossessed as of the Cutoff
Date; (vii) no Receivable is subject to a force placed Physical Damage
Insurance Policy on the related Financed Vehicle; [(viii) each Receivable
is a Simple Interest Receivable;] and (ix) the Dealer of the Financed
Vehicle has no participation in, or other right to receive, any proceeds of
the Receivable. The Receivables were selected using selection procedures
that were not intended by Seller to be adverse to the Purchaser.
(c) Schedule of Receivables. The information with respect to each
Receivable set forth in the Schedule of Receivables, including (without
limitation) the identity and address of the Obligor, account number, the
Initial Principal Balance, the maturity date and the Contract Rate, was
true and correct in all material respects as of the close of business on
the Cutoff Date.
(d) Compliance with Law. The Receivable complied at the time it was
originated or made, and will comply as of the Closing Date, in all material
respects with all requirements of applicable federal, state and local laws,
and regulations thereunder, including, to the extent applicable, usury
laws, the Federal Truth in Lending Act, the Equal Credit Opportunity Act,
the Fair Credit Billing Act, the Fair Credit Reporting Act, the Federal
Trade Commission Act, the Xxxxxxxx-
6 PURCHASE AGREEMENT
Xxxx Warranty Act, the Fair Debt Collection Practices Act, Federal Reserve
Board Regulations B and Z and any other consumer credit, consumer
protection, equal opportunity and disclosure laws.
(e) Binding Obligation. The Receivable constitutes the genuine,
legal, valid and binding payment obligation in writing of the Obligor,
enforceable in all material respects by the holder thereof in accordance
with its terms, subject to the effect of bankruptcy, insolvency,
reorganization, or other similar laws affecting the enforcement of
creditors' rights generally, and the Receivable is not subject to any right
of rescission, setoff, counterclaim or defense, including the defense of
usury.
(f) Lien in Force. Seller has not taken any action which would have
the effect of releasing the related Financed Vehicle from the Lien granted
by the Receivable in whole or in part.
(g) No Amendment or Waiver. No material provision of the Receivable
has been amended, waived, altered or modified in any respect, except such
waivers as would be permitted under this Agreement, and no amendment,
waiver, alteration or modification causes such Receivable not to conform to
the other representations or warranties contained in this Section.
(h) No Liens. Seller has not received notice of any Liens or claims,
including Liens for work, labor, materials or unpaid state or federal
taxes, relating to the Financed Vehicle securing the Receivable, that are
or may be prior to or equal to the Lien granted by the Receivable.
(i) No Default. Except for payment delinquencies continuing for a
period of not more than 30 days as of the Cutoff Date, to the knowledge of
Seller, no default, breach, violation or event permitting acceleration
under the terms of the Receivable exists and no continuing condition that
with notice or lapse of time, or both, would constitute a default, breach,
violation or event permitting acceleration under the terms of the
Receivable has arisen.
(j) Insurance. The Receivable requires the Obligor to insure the
Financed Vehicle under a Physical Damage Insurance Policy, pay the premiums
for such insurance and keep such insurance in full force and effect.
7 PURCHASE AGREEMENT
(k) Good Title. It is the intention of Seller that the transfer and
assignment herein contemplated constitute a sale of the Receivables from
Seller to Purchaser 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 or insolvency proceeding by or against Seller under any
bankruptcy or insolvency law. No Receivable has been sold, transferred,
assigned, or pledged by Seller to any Person other than Purchaser.
Immediately prior to the transfer and assignment herein contemplated,
Seller had good and marketable title to the Receivable free and clear of
any Lien and had full right and power to transfer and assign the Receivable
to Purchaser and immediately upon the transfer and assignment of the
Receivable to Purchaser, Purchaser shall have good and marketable title to
the Receivable, free and clear of any Lien; and Purchaser's interest in the
Receivable resulting from the transfer has been perfected under the UCC.
(l) Obligations. Seller has duly fulfilled all obligations on its
part to be fulfilled under, or in connection with, the Receivable.
(m) Possession. There is only one original executed Receivable, and
immediately prior to the Closing Date, the Seller will have possession of
such original executed Receivable.
(n) No Government Obligor. The Obligor on the Receivable is not the
United States of America or any state thereof or any local government, or
any agency, department, political subdivision or instrumentality of the
United States of America or any state thereof or any local government.
(o) Marking Records. By the Closing Date, 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 Receivable is owned by Purchaser in accordance with the terms of
this Agreement.
(p) 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 Purchaser.
(q) Lawful Assignment. The Receivable has not been originated in, and
is not subject to the laws of, any jurisdiction under which the sale,
transfer or assignment of such Receivable hereunder or pursuant
8 PURCHASE AGREEMENT
to transfers of the Notes or Certificates are unlawful, void or voidable.
Seller has not entered into any agreement with any Obligor that prohibits,
restricts or conditions the assignment of any portion of the Receivables.
(r) Dealer Agreements. A Dealer Agreement for each Receivable is in
effect whereby the Dealer warrants title to the Motor Vehicle and
indemnifies the Seller against the unenforceability of each Receivable sold
thereunder, and the rights of Seller thereunder, with regard to the
Receivable sold hereunder, have been validly assigned to and are
enforceable against the Dealer by the Purchaser, along with any Dealer
Recourse.
(s) Composition of Receivable. No Receivable has a Principal Balance
which includes capitalized interest or late charges.
(t) Database File. The information included with respect to each
Receivable in the database file delivered pursuant to Section 4.9(b) of the
Sale and Servicing Agreement is accurate and complete in all material
respects.
SECTION 3.3. Repurchase upon Breach. Seller or Purchaser, as the case may
be, shall inform the other party to this Agreement promptly, in writing, upon
the discovery of any breach or failure to be true of the representations or
warranties made by Seller in Section 3.2; provided that the failure to give such
notice shall not affect any obligation of 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 Seller elects, the 30th day) after the date on which Seller
becomes aware of, or receives written notice from Purchaser of, such breach or
failure, and such breach or failure materially and adversely affects the
interests of Issuer and the Holders in any Receivable. Seller shall repurchase
each such Receivable from Purchaser 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. Notwithstanding the foregoing, any
such breach or failure with respect to the representations and warranties
contained in Section 3.2 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 purchase of a Receivable
hereunder, Seller shall (unless otherwise directed by Purchaser in writing)
deposit the Purchase Amount of such Receivable, no later than the close of
business on the next Deposit Date, in the Collection Account. The sole remedy of
Purchaser with respect to a breach or failure to
9 PURCHASE AGREEMENT
be true of the warranties made by Seller pursuant to Section 3.2 shall be to
require Seller to repurchase Receivables pursuant to this Section.
ARTICLE IV
COVENANTS OF SELLER
Seller covenants and agrees with Purchaser as follows:
SECTION 4.1. Protection of Title to Seller Assets. (a) Seller shall
execute and file such financing statements and cause to be executed and filed
such continuation statements, all in such manner and in such places as may be
required by law fully to preserve, maintain and protect the interest of
Purchaser, Owner Trustee and Indenture Trustee in the Receivables and the
proceeds thereof. Seller shall deliver (or cause to be delivered) to Purchaser
file-stamped copies of, or filing receipts for, any document filed as provided
above, as soon as available following such filing.
(b) Seller shall not change its name, identity or corporate structure in
any manner that would, could or might make any financing statement or
continuation statement filed in accordance with paragraph (a) above seriously
misleading within the meaning of (S) 9-402(7) of the UCC, unless it shall have
given Purchaser, Owner Trustee and Indenture Trustee at least five days' prior
written notice thereof and shall have promptly filed appropriate amendments to
all previously filed financing statements or continuation statements.
(c) Seller shall give Purchaser, Owner Trustee and Indenture Trustee at
least 60 days' prior written notice of any relocation of its principal executive
office if, as a result of such relocation, the applicable provisions of the UCC
would require the filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement and shall promptly file
any such amendment or new financing statement.
(d) Seller shall maintain its computer systems relating to installment loan
recordkeeping so that, from and after the time of sale under this Agreement of
its Receivables, Seller's master computer records (including any backup
archives) that refer to a Receivable shall indicate clearly the interest of
Purchaser, Issuer and Indenture Trustee in such Receivable and that such
Receivable has been sold to Purchaser and by Purchaser to Issuer and is owned by
Issuer and has been pledged to Indenture Trustee pursuant to the Indenture.
Indication of Purchaser's, Issuer's and Indenture Trustee's interest in a
Receivable shall be deleted from or modified on Seller's computer systems
10 PURCHASE AGREEMENT
when, and only when, the related Receivable shall have been paid in full or
repurchased by Seller or purchased by Servicer.
(e) If at any xxxx Xxxxxx 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, Seller shall give to such
prospective purchaser, lender or other transferee computer tapes, records or
printouts (including any restored from backup archives) that, if they shall
refer in any manner whatsoever to any Receivable, shall indicate clearly that
such Receivable has been sold to Purchaser and then sold by Purchaser to Issuer
and pledged to Indenture Trustee.
(f) Seller shall permit Purchaser, Owner Trustee and Indenture Trustee and
its agents at any time during normal business hours to inspect, audit and make
copies of and abstracts from Seller's records regarding any Receivable.
(g) Upon request at any time Purchaser, Owner Trustee or Indenture Trustee
shall have reasonable grounds to believe that such request is necessary in
connection with the performance of its duties under this Agreement, Seller shall
furnish to Purchaser, within thirty (30) Business Days, a list of all
Receivables (by contract number and name of Obligor) conveyed to Purchaser
hereunder and 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.
(h) Seller shall deliver or cause to be delivered to Purchaser, Owner
Trustee and Indenture Trustee:
(1) promptly after the execution and delivery of this Agreement and
of each amendment thereto, an Opinion of Counsel either (A) stating that,
in the opinion of such counsel, all financing statements and continuation
statements have been executed and filed that are necessary fully to
preserve and protect the interest of Purchaser in the Receivables, and
reciting the details of such filings or referring to prior Opinions of
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 three 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
11 PURCHASE AGREEMENT
the interest of Purchaser in the Receivables, and reciting the details of
such filings or referring to prior Opinions of Counsel in which such
details are given, or (B) stating that, in the opinion of such counsel, no
such action shall be necessary to preserve and protect such interest.
Each Opinion of Counsel referred to in clause (1) or (2) above shall
specify any action necessary (as of the date of such opinion) to be taken in the
following year to preserve and protect such interest.
SECTION 4.2. Liability of Seller; Indemnities. 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 Purchaser,
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, and on the date
of, the sale of the Receivables to Purchaser, including any sales, gross
receipts, general corporation, tangible personal property, privilege or
license taxes (but, not including any taxes asserted with respect to
Federal or other income taxes arising out of this Agreement and the other
Basic Documents) and costs and expenses in defending against the same.
(b) Seller shall indemnify, defend and hold harmless Purchaser,
Issuer, Owner Trustee, Indenture Trustee, the Certificateholders, the
Noteholders and the officers, directors, employees and agents of Purchaser,
Issuer, Owner Trustee and Indenture Trustee from and against any and all
costs, expenses, losses, claims, damages and liabilities to the extent
arising out of, or imposed upon such Person through or as a result of (i)
Seller's willful misfeasance, bad faith or gross negligence in the
performance of its duties under this Agreement, and (ii) the failure of any
Receivable conveyed by it to Purchaser hereunder, or the sale of the
related Financed Vehicle, to comply with all requirements of applicable
law.
(c) Seller shall be liable as primary obligor for, and shall
indemnify, defend and hold harmless Purchaser and its officers, directors,
employees and agents from and against any and all costs, expenses, losses,
claims, damages and liabilities arising out of, or incurred in connection
with, the acceptance or performance of the duties set forth herein, except
to the extent that such cost, expense, loss, claim, damage or liability
shall be due to the willful misfeasance, bad faith or negligence (except
for errors in judgment) of Xxxxxxxxx.
00 XXXXXXXX AGREEMENT
Indemnification under this Section shall survive the termination of this
Agreement 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.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1. Obligations of Seller. The obligations of Seller under this
Agreement shall not be affected by reason of any invalidity, illegality or
irregularity of any Receivable.
SECTION 5.2. Seller's Assignment of Purchased Receivables. With respect
to all Receivables repurchased by Seller pursuant to this Agreement, Purchaser
shall assign, without recourse, representation or warranty, to Seller all
Purchaser's right, title and interest in and to such Receivables, and all
security and documents relating thereto.
SECTION 5.3. Subsequent Transfer to Issuer and Indenture Trustee. Seller
acknowledges that:
(a) Purchaser will, pursuant to the Sale and Servicing Agreement,
sell the Receivables to Issuer and assign its rights under this Agreement
to the Owner Trustee for the benefit of the Noteholders and the
Certificateholders, and that the representations and warranties contained
in this Agreement and the rights of Purchaser under Section 3.3 hereof are
intended to benefit Issuer, the Owner Trustee, the Noteholders and the
Certificateholders. Seller hereby consents to such sale and assignment.
(b) Issuer will, pursuant to the Indenture, pledge the Receivables
and its rights under this Agreement to the Indenture Trustee for the
benefit of the Noteholders, and that the representations and warranties
contained in this Agreement and the rights of Purchaser under this
Agreement, including under Section 3.3 are intended to benefit the
Indenture Trustee and the Noteholders. Seller hereby consents to such
pledge.
SECTION 5.4. Amendment. (a) This Agreement may be amended by Seller and
the Purchaser, with the consent of the Servicer, Owner Trustee and
13 PURCHASE AGREEMENT
Indenture Trustee (which consent may not be unreasonably withheld), but without
the consent of any of the Noteholders or the Certificateholders:
(i) to cure any ambiguity or defect, to correct or supplement any
provisions in this Agreement or for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions in this Agreement;
provided that such action shall not, as evidenced by an Opinion of Counsel
delivered to Purchaser, Owner Trustee and Indenture Trustee, adversely affect in
any material respect the interests of any Noteholder or Certificateholder;
(ii) (A) to add, modify or eliminate such provisions as may be necessary
or advisable in order to enable all or a portion of Issuer to qualify as, and to
permit an election to be made to cause all or a portion of Issuer to be treated
as, a "financial asset securitization investment trust" as described in the
provisions of the "Small Business Job Protection Act of 1996," or to enable all
or a portion of the Issuer to qualify and an election to be made for similar
treatment under such comparable subsequent federal income tax provisions as may
ultimately be enacted into law, 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 each Rating Agency shall have notified the Seller, Purchaser, the
Servicer, Indenture Trustee and the Owner Trustee in writing that the amendment
will not result in a reduction or withdrawal of the rating of any outstanding
Notes or Certificates with respect to which it is a Rating Agency; and
(iii) to add, modify or eliminate such provisions as may be necessary or
advisable in order to enable (a) the transfer to Issuer of all or any portion of
the Receivables to be derecognized under GAAP by Purchaser to Issuer, (b) Issuer
to avoid becoming a member of Purchaser's consolidated group under GAAP or (c)
the Seller or Purchaser, or any of their Affiliates to otherwise comply with or
obtain more favorable treatment under any law or regulation or any accounting
rule or principle; it being a condition to any such amendment that each Rating
Agency shall have notified the Seller, Purchaser, the Servicer, Indenture
Trustee and the Owner Trustee in writing that the amendment will not result in a
reduction or withdrawal of the rating of any outstanding Notes or Certificates
with respect to which it is a Rating Agency.
(b) This Agreement may also be amended from time to time by Seller and
Purchaser, with the consent of the Servicer, Owner Trustee and Indenture
Trustee, the consent of the Holders of Notes evidencing not less than a majority
of the Outstanding Amount of the Notes and the consent of the
14 PURCHASE AGREEMENT
Holders of Certificates evidencing not less than a majority of the Certificate
Balance for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement; provided that no such
amendment shall (i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on Receivables or
distributions that shall be required to be made for the benefit of the
Noteholders or the Certificateholders or (ii) reduce the aforesaid percentage of
the Outstanding Amount of the Notes and the Certificate Balance, the Holders of
which are required to consent to any such amendment, without the consent of the
Holders of all the outstanding Notes and the Holders of all the outstanding
Certificates of each class affected thereby.
(c) Prior to the execution of any such amendment or consent, Purchaser
shall furnish written notification of the substance of such amendment or consent
to each Rating Agency. Promptly after the execution of any such amendment or
consent, Purchaser shall furnish written notification the substance of such
amendment or consent to each Noteholder, Certificateholder and Owner Trustee and
Indenture Trustee.
(d) It shall not be necessary for the consent of Certificateholders or
Noteholders pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof.
(e) Prior to the execution of any amendment to this Agreement, Purchaser,
Owner Trustee and Indenture Trustee shall be entitled to receive and rely upon
an Opinion of Counsel stating that the execution of such amendment is authorized
or permitted by this Agreement and that all conditions precedent to the
execution and delivery of such amendment have been satisfied and the Opinion of
Counsel referred to in Section 4.1(h)(i) has been delivered. Purchaser, Owner
Trustee and Indenture Trustee may, but shall not be obligated to, enter into any
such amendment which affects Purchaser's, Owner Trustee's or Indenture
Trustee's, as applicable, own rights, duties or immunities under this Agreement
or otherwise.
SECTION 5.5. Waivers. No failure or delay on the part of Purchaser in
exercising any power, right or remedy under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power,
right or remedy preclude any other or further exercise thereof or the exercise
of any other power, right or remedy.
SECTION 5.6. Notices. All demands, notices and communications pursuant to
this Agreement to either party shall be in writing, personally delivered, or
sent by telecopier, overnight mail or mailed by certified mail,
15 PURCHASE AGREEMENT
return receipt requested, and shall be deemed to have been duly given upon
receipt at the address set forth in Exhibit A attached hereto or at such other
address as may be designated by it by notice to the other party.
SECTION 5.7. Costs and Expenses. Seller will pay all expenses incident to
the performance of its obligations under this Agreement and Purchaser agrees to
pay expenses incident to the performance of its obligations under this Agreement
and all expenses in connection with the perfection as against third parties of
Purchaser's right, title and interest in and to the Receivables.
SECTION 5.8. Representations to Seller. The respective agreements,
representations, warranties and other statements by Seller and Purchaser set
forth in or made pursuant to this Agreement shall remain in full force and
effect and will survive the Closing Date.
SECTION 5.9. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 5.10. Counterparts. This Agreement may be executed in two or more
counterparts and by different parties on separate counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
[SIGNATURE PAGES FOLLOW]
16 PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties hereby have caused this Purchase Agreement
to be executed by their respective officers thereunto duly authorized as of the
date and year first above written.
[NAME OF SELLER AFFILIATE]
By: ___________________________________
Name:
Title:
AMSOUTH AUTOCORP, INC.
By: ___________________________________
Name:
Title:
EXHIBIT A
LOCATION OF SELLER AND PURCHASER
[NAME OF SELLER AFFILIATE]
AMSOUTH AUTOCORP, INC.
Address for Notice:
__________________
__________________
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