Exhibit 4.1
EXECUTION COPY
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AMSOUTH AUTO TRUST 2000-1
AMENDED AND RESTATED TRUST AGREEMENT
between
AMSOUTH AUTO RECEIVABLES LLC
and
THE CHASE MANHATTAN BANK,
as Owner Trustee
Dated as of October 1, 2000
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TABLE OF CONTENTS
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Page
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ARTICLE I DEFINITIONS................................................................... 1
SECTION 1.1. Capitalized Terms..................................................... 1
SECTION 1.2. Other Interpretive Provisions......................................... 1
ARTICLE II ORGANIZATION................................................................. 2
SECTION 2.1. Name.................................................................. 2
SECTION 2.2. Office................................................................ 2
SECTION 2.3. Purposes and Powers................................................... 2
SECTION 2.4. Appointment of Owner Trustee.......................................... 3
SECTION 2.5. Initial Capital Contribution of Trust Estate.......................... 3
SECTION 2.6. Declaration of Trust.................................................. 3
SECTION 2.7. Organizational Expenses; Liabilities of the Holders................... 3
SECTION 2.8. Title to Issuer Property.............................................. 3
SECTION 2.9. Situs of Issuer....................................................... 3
SECTION 2.10. Representations and Warranties of Depositor.......................... 4
SECTION 2.11. Federal Income Tax Allocations....................................... 5
ARTICLE III CERTIFICATES AND TRANSFER OF INTERESTS....................................... 5
SECTION 3.1. Initial Ownership..................................................... 5
SECTION 3.2. The Certificates...................................................... 5
SECTION 3.3. Authentication of Certificates........................................ 6
SECTION 3.4. Registration of Transfer and Exchange of Certificates................. 6
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates..................... 7
SECTION 3.6. Persons Deemed Certificateholders..................................... 7
SECTION 3.7. Access to List of Certificateholders' Names and Addresses............. 7
SECTION 3.8. Maintenance of Office or Agency....................................... 8
SECTION 3.9. Appointment of Paying Agent........................................... 8
SECTION 3.10. Form of the Certificates............................................. 9
SECTION 3.11. Transfer Restrictions................................................ 9
SECTION 3.12. Legending of Certificates........................................... 11
ARTICLE IV ACTIONS BY OWNER TRUSTEE.................................................... 12
SECTION 4.1. Prior Notice to Owners with Respect to Certain Matters............... 12
SECTION 4.2. Action by Certificateholders with Respect to Certain Matters......... 13
SECTION 4.3. Action by Certificateholders with Respect to Bankruptcy.............. 13
SECTION 4.4. Restrictions on Certificateholders' Power............................ 13
SECTION 4.5. Certificateholder Control............................................ 13
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES................................... 14
SECTION 5.1. Establishment of Certificate Distribution Account.................... 14
SECTION 5.2. Application of Funds in Certificate Distribution Account............. 14
SECTION 5.3. Method of Payment.................................................... 14
SECTION 5.4. No Segregation of Monies; No Interest................................ 15
SECTION 5.5. Accounting and Reports to the Noteholders, Certificateholders, the
Internal Revenue Service and Others................................ 15
SECTION 5.6. Signature on Returns; Tax Matters Partner............................ 15
ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE....................................... 16
SECTION 6.1. General Authority.................................................... 16
SECTION 6.2. General Duties....................................................... 16
SECTION 6.3. Action upon Instruction.............................................. 16
SECTION 6.4. No Duties Except as Specified in this Agreement or in Instructions... 17
SECTION 6.5. No Action Except under Specified Documents or Instructions........... 17
SECTION 6.6. Restrictions......................................................... 18
ARTICLE VII CONCERNING OWNER TRUSTEE................................................... 18
SECTION 7.1. Acceptance of Trusts and Duties...................................... 18
SECTION 7.2. Furnishing of Documents.............................................. 19
SECTION 7.3. Representations and Warranties....................................... 19
SECTION 7.4. Reliance; Advice of Counsel.......................................... 20
SECTION 7.5. Not Acting in Individual Capacity.................................... 21
SECTION 7.6. Owner Trustee Not Liable for Certificates or Receivables............. 21
SECTION 7.7. Owner Trustee May Own Certificates and Notes......................... 21
ARTICLE VIII COMPENSATION OF OWNER TRUSTEE............................................. 21
SECTION 8.1. Owner Trustee's Fees and Expenses.................................... 21
SECTION 8.2. Indemnification...................................................... 22
SECTION 8.3. Payments to Owner Trustee............................................ 22
ARTICLE IX TERMINATION OF TRUST AGREEMENT.............................................. 22
SECTION 9.1. Termination of Trust Agreement....................................... 22
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES....................... 23
SECTION 10.1. Eligibility Requirements for Owner Trustee.......................... 23
SECTION 10.2. Resignation or Removal of Owner Trustee............................. 23
SECTION 10.3. Successor Owner Trustee............................................. 24
SECTION 10.4. Merger or Consolidation of Owner Trustee............................ 25
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee....................... 25
ARTICLE XI MISCELLANEOUS............................................................... 26
SECTION 11.1. Supplements and Amendments.......................................... 26
SECTION 11.2. No Legal Title to Owner Trust Estate in Certificateholders.......... 28
SECTION 11.3. Limitations on Rights of Others..................................... 28
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SECTION 11.4. Notices............................................................ 28
SECTION 11.5. Severability....................................................... 28
SECTION 11.6. Separate Counterparts.............................................. 29
SECTION 11.7. Successors and Assigns............................................. 29
SECTION 11.8. No Petition........................................................ 29
SECTION 11.9. No Recourse........................................................ 29
SECTION 11.10. Headings.......................................................... 30
SECTION 11.11. GOVERNING LAW..................................................... 30
SECTION 11.12. Servicer.......................................................... 30
SECTION 11.13. Sale and Servicing Agreement...................................... 30
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EXHIBITS
Exhibit A Form of Certificate
Exhibit B Form of Transferor Certificate
Exhibit C Form of Transferee Certificate
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This AMENDED AND RESTATED TRUST AGREEMENT is made as of October 1, 2000 (as
from time to amended, supplemented or otherwise modified and in effect, this
"Agreement") between AMSOUTH AUTO RECEIVABLES LLC, a Delaware limited liability
company, as Depositor, and THE CHASE MANHATTAN BANK, a New York banking
corporation, as Owner Trustee.
WHEREAS, The Depositor and the Owner Trustee entered into that certain
Trust Agreement dated as of October 1, 2000 (the "Original Trust Agreement"),
pursuant to which the Trust was created; and
WHEREAS, the Depositor and the Owner Trustee have agreed to amend and
restate the Original Trust Agreement;
NOW THEREFORE, in consideration of the mutual agreement contained
herein, the agreements contained in the other Basic Documents, and other good
and valuable consideration, the receipt and sufficiency of which we hereby
acknowledged, the parties hereto agree that the Trust is hereunder continued and
the Original Trust Agreement is hereby amended and restated in its entirety as
follows:
ARTICLE I DEFINITIONS.
SECTION 1.1. Capitalized Terms. Capitalized terms are used in this
Agreement as defined in Appendix X to the Sale and Servicing Agreement among the
trust established by this Agreement, AmSouth Auto Receivables LLC, as Seller,
AmSouth Bank, as Servicer, dated as of September 1, 2000, as the same may be
amended and supplemented from time to time.
SECTION 1.2. Other Interpretive Provisions. All terms defined in this
Agreement shall have the defined meanings when used in any certificate or other
document delivered pursuant hereto unless otherwise defined therein. For
purposes of this Agreement and all such certificates and other documents, 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 State of New York and not otherwise defined in this
Agreement are used as defined in that Article; (c) the words "hereof," "herein"
and "hereunder" and words of similar import refer to this Agreement as a whole
and not to any particular provision of this Agreement; (d) references to any
Article, Section, Schedule or Exhibit are references to Articles, Sections,
Schedules and Exhibits in or to this Agreement, and references to any paragraph,
subsection, clause or other subdivision within any Section or definition refer
to such paragraph, subsection, clause or other subdivision of such Section or
definition; (e) the term "including" means "including without limitation"; (f)
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 TRUST AGREEMENT
ARTICLE II ORGANIZATION.
SECTION 2.1. Name. The trust created hereby shall be known as "AmSouth
Auto Trust 2000-1", in which name Owner Trustee may conduct the business of such
trust, make and execute contracts and other instruments on behalf of such trust
and xxx and be sued on behalf of the Trust.
SECTION 2.2. Office. The office of Issuer shall be in care of Owner
Trustee at the Corporate Trust Office or at such other address as Owner Trustee
may designate by written notice to the Certificateholders and Depositor.
SECTION 2.3. Purposes and Powers. The purpose of Issuer is, and Issuer
shall have the power and authority, to engage in the following activities:
(a) to issue the Notes pursuant to the Indenture and the Certificates
pursuant to this Agreement, and to sell, transfer and exchange the Notes
and the Certificates and to pay interest on and principal of the Notes and
distributions on the Certificates;
(b) to acquire the property and assets set forth in the Sale and
Servicing Agreement from the Depositor pursuant to the terms thereof, to
make deposits to and withdrawals from the Reserve Account and to pay the
organizational, start-up and transactional expenses of Issuer;
(c) to assign, grant, transfer, pledge, mortgage and convey the Trust
Estate pursuant to the Indenture and to hold, manage and distribute to the
Certificateholders pursuant to the terms of the Sale and Servicing
Agreement any portion of the Trust Estate released from the Lien of, and
remitted to Issuer pursuant to, the Indenture;
(d) to enter into and perform its obligations under the Basic
Documents to which it is a party;
(e) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(f) subject to compliance with the Basic Documents, to engage in such
other activities as may be required in connection with conservation of the
Owner Trust Estate and the making of distributions to the
Certificateholders and the Noteholders.
Issuer is hereby authorized to engage in the foregoing activities. Issuer shall
not engage in any activity other than in connection with the foregoing or other
than as required or authorized by the terms of this Agreement or the other Basic
Documents.
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SECTION 2.4. Appointment of Owner Trustee. Depositor hereby appoints
Owner Trustee as trustee of Issuer effective as of the date hereof, to have all
the rights, powers and duties set forth herein.
SECTION 2.5. Initial Capital Contribution of Trust Estate. Pursuant to
the Original Trust Agreement, the Depositor has sold, assigned, transferred,
conveyed and set over to the Owner Trustee, as of the date thereof, the sum of
$1. The Owner Trustee hereby acknowledges receipt in trust from the Depositor,
as of the date thereof, of the foregoing contribution, which shall constitute
the initial Owner Trust Estate and shall be deposited in the Certificate
Distribution Account.
SECTION 2.6. Declaration of Trust. Owner Trustee hereby declares that it
will hold the Owner Trust Estate in trust upon and subject to the conditions set
forth herein for the use and benefit of the Certificateholders, subject to the
obligations of Issuer under the Basic Documents. It is the intention of the
parties hereto that Issuer constitute a trust under the common law of the state
of New York and that this Agreement constitute the governing instrument of such
trust. It is the intention of the parties hereto that, solely for income and
franchise tax purposes, until the Certificates are held by other than the
Depositor, the Issuer will be disregarded as an entity separate from the
Depositor and the Notes will be characterized as debt. At such time that the
Certificates are held by more than one Person, it is the intention of the
parties hereto that, solely for income and franchise tax purposes, the Issuer
shall be treated as a partnership, with the assets of the partnership being the
Receivables and other assets held by the Issuer, the partners of the partnership
being the Certificateholders, and the Notes being debt of the partnership.
Depositor and the Certificateholders by acceptance of a Certificate agree to
such treatment and agree to take no action inconsistent with such treatment.
The parties agree that, unless otherwise required by appropriate tax
authorities, until the Certificates are held by more than one Person the Issuer
will not file or cause to be filed annual or other necessary returns, reports
and other forms consistent with the characterization of the Issuer as an entity
separate from its owner.
SECTION 2.7. Organizational Expenses; Liabilities of the Holders. (a)
Depositor shall pay organizational expenses of Issuer as they may arise or
shall, upon the request of Owner Trustee, promptly reimburse Owner Trustee for
any such expenses paid by Owner Trustee.
(b) No Certificateholder shall have any personal liability for any
liability or obligation of the Trust.
SECTION 2.8. Title to Issuer Property. Legal title to all the Owner Trust
Estate shall be vested at all times in Issuer as a separate legal entity except
where applicable law in any jurisdiction requires title to any part of the Owner
Trust Estate to be vested in a trustee or trustees, in which case title shall be
deemed to be vested in Owner Trustee, a co-trustee and/or a separate trustee, as
the case may be.
SECTION 2.9. Situs of Issuer. Issuer will be located and administered in
the State of New York. All bank accounts maintained by Owner Trustee on behalf
of Issuer shall be located
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in the State of New York. Payments will be received by Issuer only in New York,
and payments will be made by Issuer only from New York. The only office of
Issuer will be at the Corporate Trust Office.
SECTION 2.10. Representations and Warranties of Depositor. Depositor
hereby represents and warrants to Owner Trustee that:
(a) Depositor is duly organized and validly existing as a Delaware
limited liability company with power and authority to own its properties
and to conduct its business as such properties are currently owned and such
business is presently conducted.
(b) Depositor is duly qualified to do business as a foreign limited
liability company 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,
licenses and approvals, except where the failure to have such
qualifications, licenses and approvals would not have a material adverse
effect on the Depositor.
(c) Depositor has the power and authority to execute and deliver this
Agreement and to carry out its terms and Depositor has full power and
authority to sell and assign the property to be sold and assigned to and
deposited with Issuer, and Depositor has duly authorized such sale and
assignment and deposit to Issuer by all necessary action; and the
execution, delivery and performance of this Agreement has been duly
authorized by Depositor.
(d) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time) a default under, the limited
liability company agreement, of Depositor, or any material indenture,
agreement or other instrument to which Depositor is a party or by which it
is bound; nor result in the creation or imposition of any Lien upon any of
its properties pursuant to the terms of any such indenture, agreement or
other instrument (other than pursuant to the Basic Documents); nor violate
any law or, to the best of Depositor's knowledge, any order, rule or
regulation applicable to Depositor of any court or of any Federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over Depositor or its properties.
(e) There are no proceedings or investigations pending or, to the
Depositor's best knowledge, threatened before any court, regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties: (i) asserting the
invalidity of this Agreement, the Indenture, any of the other Basic
Documents, the Notes or the Certificates, (ii) seeking to prevent the
issuance of the Notes or the Certificates or the consummation of any of the
transactions contemplated by this Agreement, the Indenture or any of the
other Basic Documents, (iii) seeking any
2000-1 TRUST AGREEMENT
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determination or ruling that might materially and adversely affect the
performance by the Depositor or its obligations under, or the validity or
enforceability of, this Agreement or (iv) which might adversely affect the
federal income tax attributes, or applicable state tax franchise or income
tax attributes, of the Notes and the Certificates.
SECTION 2.11. Federal Income Tax Allocations. If Certificates are held by
more than one Person,
(a) amounts paid to Certificateholders pursuant to Section 5.2(a)
shall be treated as "guaranteed payments" within the meaning of Section
707(c) of the Code; and
(b) to the extent that the characterization provided for in paragraph
(a) of this Section is not respected, gross ordinary income of Issuer for
such month as determined for federal income tax purposes (and each item of
income, gain, credit, loss or deduction entering into the computation
thereof), to the extent thereof, shall be allocated among the
Certificateholders as of the first Record Date following the end of such
month, in proportion to their Certificate Percentage Interests in Issuer on
such date.
Net losses of Issuer, if any, for any month as determined for federal income tax
purposes (and each item of income, gain, loss, credit and deduction entering
into the computation thereof) shall be allocated to Depositor to the extent
Depositor is reasonably expected as determined by Servicer to bear the economic
burden of such net losses, then net losses shall be allocated among the
Certificateholders as of the first Record Date following the end of such month
in proportion to their Certificate Percentage Interests on such Record Date.
Depositor is authorized to modify the allocations in this paragraph if necessary
or appropriate, in its sole discretion, for the allocations to fairly reflect
the economic income, gain or loss to Depositor, the Certificateholders, or as
otherwise required by the Code. Notwithstanding anything provided in this
Section 2.11, if the Certificates are held solely by the Depositor, the
application of this Section 2.11 shall be disregarded.
ARTICLE III CERTIFICATES AND TRANSFER OF INTERESTS.
SECTION 3.1. Initial Ownership. Upon the formation of Issuer by the
contribution by Depositor pursuant to Section 2.5 and until the issuance of the
Certificates, Depositor shall be the sole beneficiary of the Trust.
SECTION 3.2. The Certificates. The Certificates shall be executed on
behalf of Issuer by manual or facsimile signature of an authorized officer of
Owner Trustee. Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of Issuer, shall be validly issued and entitled to
the benefit of this Agreement, notwithstanding that such individuals or any of
them shall have ceased to be so authorized prior to the authentication and
delivery of such Certificates or did not hold such offices at the date of
authentication and delivery of such Certificates. If a transfer of the
Certificates is permitted pursuant to Section 3.11, a transferee of a
Certificate shall become a
2000-1 TRUST AGREEMENT
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Certificateholder, and shall be entitled to the rights and subject to the
obligations of a Certificateholder hereunder upon such transferee's acceptance
of a Certificate duly registered in such transferee's name pursuant to Section
3.4.
SECTION 3.3 Authentication of Certificates. Concurrently with the initial
sale of the Receivables to Issuer pursuant to the Sale and Servicing Agreement,
Owner Trustee shall cause the Certificates in an aggregate Certificate
Percentage Interest equal to 100% to be executed on behalf of Issuer,
authenticated and delivered to or upon the written order of Depositor, signed by
its chairman of the board, its president, its chief financial officer, its chief
accounting officer, any vice president, its secretary, any assistant secretary,
its treasurer or any assistant treasurer, without further corporate action by
Depositor. No Certificate shall entitle its Holder to any benefit under this
Agreement, or be valid for any purpose, unless there shall appear on such
Certificate a certificate of authentication substantially in the form set forth
in Exhibit A, executed by Owner Trustee by manual signature; such authentication
shall constitute conclusive evidence that such Certificate shall have been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication.
SECTION 3.4 Registration of Transfer and Exchange of Certificates.
(a) Certificate Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 3.8, a Certificate Register in
which, subject to such reasonable regulations as it may prescribe, Owner Trustee
shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. The Chase Manhattan Bank shall be
the initial Certificate Registrar. No certificate may be sold, transferred,
assigned, participated, pledged, or otherwise disposed of to any Person except
in accordance with the provisions of Section 3.11 and any attempted transfer in
violation of Section 3.11 shall be null and void.
(b) Upon surrender for registration of transfer of any Certificate at
the office or agency maintained pursuant to Section 3.8, and upon compliance
with the provisions of this Agreement relating to such transfer, Owner Trustee
shall execute, authenticate and deliver in the name of the designated transferee
or transferees, one or more new Certificates in authorized denominations of a
like class and Certificate Percentage Interest dated the date of authentication
by Owner Trustee or any authenticating agent. At the option of a
Certificateholder, Certificates may be exchanged for other Certificates of the
same class in authorized denominations of a like aggregate amount upon surrender
of the Certificates to be exchanged at the office or agency maintained pursuant
to Section 3.8.
(c) Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to Owner Trustee and Certificate Registrar duly executed by
the Certificateholder or his attorney duly authorized in writing, with such
signature guaranteed by a member firm of the New York Stock Exchange, a
commercial bank or trust company or an "eligible guarantor institution" with
membership or participation in STAMP or such other "signature guarantee program"
as may be
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determined by Certificate Registrar in addition to, or substitution for, STAMP,
all in accordance with the Exchange Act. Each Certificate surrendered for
registration of transfer or exchange shall be canceled and subsequently disposed
of by Owner Trustee or Certificate Registrar in accordance with its customary
practice.
(d) No service charge shall be made for any registration of transfer
or exchange of Certificates, but Owner Trustee or Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
(e) The preceding provisions of this Section 3.4 notwithstanding,
Owner Trustee shall not make and the Certificate Registrar need not register any
transfer or exchange of Certificates for a period of fifteen (15) days preceding
any Distribution Date for any payment with respect to the Certificates.
SECTION 3.5 Mutilated, Destroyed, Lost or Stolen Certificates. If (a) any
mutilated Certificate shall be surrendered to Certificate Registrar, or if
Certificate Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there shall be delivered
to Certificate Registrar and Owner Trustee such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Certificate shall have been acquired by a bona fide purchaser, Owner
Trustee on behalf of Issuer shall execute and Owner Trustee shall authenticate
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Certificate, a new Certificate of like class, tenor and Certificate
Percentage Interest. In connection with the issuance of any new Certificate
under this Section, Owner Trustee or Certificate Registrar may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Certificate issued
pursuant to this Section shall constitute conclusive evidence of an ownership
interest in Issuer, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
SECTION 3.6 Persons Deemed Certificateholders. Every Person by virtue of
becoming a Certificateholder in accordance with this Agreement shall be deemed
to be bound by the terms of this Agreement. Prior to due presentation of a
Certificate for registration of transfer, Owner Trustee, Certificate Registrar
or any agent of Owner Trustee or Certificate Registrar may treat the Person in
whose name any Certificate shall be registered in the Certificate Register as
the owner of such Certificate for the purpose of receiving distributions
pursuant to Section 5.2 and for all other purposes whatsoever, and none of Owner
Trustee, Certificate Registrar or any agent of Owner Trustee or Certificate
Registrar shall be bound by any notice to the contrary.
SECTION 3.7 Access to List of Certificateholders' Names and Addresses.
Owner Trustee shall furnish or cause to be furnished to Servicer, Depositor or
Indenture Trustee, within 15 days after receipt by Owner Trustee of a request
therefor from Servicer, Depositor or Indenture Trustee in writing, a list, in
such form as Servicer, Depositor or Indenture Trustee may reasonably require, of
the names and addresses of the Certificateholders as of the most recent
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Record Date. If Holders of Certificates evidencing not less than 25% of the
Certificate Percentage Interests, apply in writing to Owner Trustee, and such
application states that the applicants desire to communicate with other
Certificateholders with respect to their rights under this Agreement or under
the Certificates and such application is accompanied by a copy of the
communication that such applicants propose to transmit, then Owner Trustee
shall, within five Business Days after the receipt of such application, afford
such applicants access during normal business hours to the current list of
Certificateholders. Each Certifcateholder, by receiving and holding a
Certificate, shall be deemed to have agreed not to hold Depositor, Certificate
Registrar or Owner Trustee accountable by reason of the disclosure of its name
and address, regardless of the source from which such information was derived.
SECTION 3.8 Maintenance of Office or Agency. Owner Trustee shall maintain
in the Borough of Manhattan, The City of New York, an office or offices or
agency or agencies where Certificates may be surrendered for registration of
transfer or exchange and where notices and demands to or upon Owner Trustee in
respect of the Certificates and the Basic Documents may be served. Owner Trustee
initially designates its Corporate Trust Office, as its principal corporate
trust office for such purposes. Owner Trustee shall give prompt written notice
to Depositor and to the Certificateholders of any change in the location of the
Certificate Register or any such office or agency.
SECTION 3.9 Appointment of Paying Agent. Paying Agent shall make
distributions to Certificateholders from the Certificate Distribution Account
pursuant to Section 5.2 and shall report the amounts of such distributions to
Owner Trustee; provided that this reporting shall not be required where the
Owner Trustee is serving as Paying Agent. Any Paying Agent shall have the
revocable power, upon direction from the Administrator, with written copy
provided to the Owner Trustee, to withdraw funds from the Certificate
Distribution Account for the purpose of making the distributions referred to
above. Owner Trustee may revoke such power and remove Paying Agent if Owner
Trustee determines in its sole discretion that Paying Agent shall have failed to
perform its obligations under this Agreement in any material respect. Paying
Agent shall initially be The Chase Manhattan Bank, and any co-paying agent
chosen by The Chase Manhattan Bank, and acceptable to Owner Trustee. Paying
Agent shall be permitted to resign upon 30 days' written notice to Owner Trustee
and Servicer. In the event that The Chase Manhattan Bank shall no longer be
Paying Agent, Owner Trustee shall appoint a successor to act as Paying Agent
(which shall be a bank or trust company). Owner Trustee shall cause such
successor Paying Agent or any additional Paying Agent appointed by Owner Trustee
to execute and deliver to Owner Trustee an instrument in which such successor
Paying Agent or additional Paying Agent shall agree with Owner Trustee that as
Paying Agent, such successor Paying Agent or additional Paying Agent will hold
all sums, if any, held by it for payment to the Certificateholders in trust for
the benefit of the Certificateholders entitled thereto until such sums shall be
paid to such Certificateholders. Paying Agent shall return all unclaimed funds
to Owner Trustee and upon removal of a Paying Agent such Paying Agent shall also
return all funds in its possession to Owner Trustee. The provisions of Sections
7.1, 7.3, 7.4 and 8.1 shall apply to Owner Trustee also in its role as Paying
Agent, for so long as Owner Trustee shall act as Paying Agent and, to the extent
applicable, to any other paying agent appointed hereunder. Any
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reference in this Agreement to Paying Agent shall include any co-paying agent
unless the context requires otherwise.
SECTION 3.10 Form of the Certificates. The Certificates, upon original
issuance, will be issued in the form of a typewritten Certificate or
Certificates representing Definitive Certificates and shall be registered in the
name of AmSouth Auto Receivables LLC as the initial registered owner thereof.
Owner Trustee shall execute and authenticate, or cause to be authenticated, the
Definitive Certificates in accordance with the instructions of the Depositor.
Neither Certificate Registrar nor Owner Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Certificates,
the Owner Trustee and each Paying Agent shall recognize the Holders of the
Certificates as Certificateholders. The Certificates shall be printed,
lithographed or engraved or may be produced in any other manner as is reasonably
acceptable to the Owner Trustee, as evidenced by its execution thereof.
SECTION 3.11 Transfer Restrictions. (a) No Certificate may be resold,
assigned or transferred (including by pledge or hypothecation) unless such
resale, assignment or transfer is (i) pursuant to an effective registration
statement under the Securities Act and any applicable state securities or "Blue
Sky" laws, (ii) pursuant to Rule 144A promulgated under the Securities Act
("Rule 144A") or (iii) pursuant to another exemption from the registration
requirements of the Securities Act and subject to the receipt by the Owner
Trustee and the Depositor of (A) a certification by both the prospective
transferor and the prospective transferee of the facts surrounding such
transfer, which certification shall be in form and substance satisfactory to the
Owner Trustee and the Depositor and (B) an opinion of counsel (which will not be
at the expense of the Depositor or the Owner Trustee), satisfactory to the
Depositor and the Owner Trustee, to the effect that the transfer is in
compliance with the Securities Act, and, in each case, in compliance with any
applicable securities or "Blue Sky" laws of any state of the United States. In
addition, each transferee shall provide to the Owner Trustee its tax
identification number, address, nominee name (if applicable) and wire transfer
instructions. Prior to any resale, assignment or transfer of the Certificates
described in clause (ii) above, each prospective purchaser of the Certificates
shall have acknowledged, represented and agreed as follows:
(1) It is a "qualified institutional buyer" as defined in Rule 144A
("QIB") and is acquiring the Certificates for its own institutional account
(and not for the account of others) or as a fiduciary or agent for others
(which others also are QIBs).
(2) It acknowledges that the Certificates have not been and will not
be registered under the Securities Act or the securities laws of any
jurisdiction.
(3) It is familiar with Rule 144A and is aware that the sale is being
made in reliance on Rule 144A and it is not acquiring the Certificates with
a view to, or for resale in connection with, a distribution that would
constitute a public offering within the meaning of the Securities Act or a
violation of the Securities Act, and that, if in the future it decides to
resell, assign, pledge or otherwise transfer any Certificates, such
Certificates
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may be resold, assigned, pledged or transferred only (i) to the Depositor
or any Affiliate thereof, (ii) so long as such Certificate is eligible for
resale pursuant to Rule 144A, to a person whom it reasonably believes after
due inquiry is a QIB acting for its own account (and not for the account of
others) or as a fiduciary or agent for others (which others also are QIBs)
to whom notice is given that the resale, pledge, assignment or transfer is
being made in reliance on Rule 144A, (iii) pursuant to an effective
registration statement under the Securities Act or (iv) in a sale, pledge
or other transfer made in a transaction otherwise exempt from the
registration requirements of the Securities Act, in which case (A) the
Owner Trustee shall require that both the prospective transferor and the
prospective transferee certify to the Owner Trustee and the Depositor in
writing the facts surrounding such transfer, which certification shall be
in form and substance satisfactory to the Owner Trustee and the Depositor
and (B) the Owner Trustee shall require a written opinion of counsel (which
will not be at the expense of the Depositor or the Owner Trustee)
satisfactory to the Depositor and the Owner Trustee to the effect that such
transfer will not violate the Securities Act, in each case in accordance
with any applicable securities or "Blue Sky" laws of any state of the
United States.
(4) It is aware that it (or any account for which it is purchasing)
may be required to bear the economic risk of an investment in the
Certificates for an indefinite period, and it (or such account) is able to
bear such risk for an indefinite period.
(5) It understands that the Certificates will bear legends
substantially as set forth in Section 3.12.
(6) If it is acquiring any Certificates for the account of one or
more qualified institutional buyers, it represents that it has sole
investment discretion with respect to each such account and that it has
full power to make the foregoing acknowledgments, representations and
agreements on behalf of each such account.
(7) It acknowledges that the Owner Trustee, the Depositor, and their
Affiliates, and others will rely upon the truth and accuracy of the
foregoing acknowledgments, representations and agreements.
Each transferor of the Certificates shall be required to execute or to have
executed a representation letter substantially in the form of Exhibit B, and
each transferee shall be required to execute or to have executed a
representation letter substantially in the form of Exhibit C, or each may
deliver such other representations (or an opinion of counsel) as may be approved
by the Owner Trustee and the Depositor, to the effect that such transfer may be
made pursuant to an exemption from registration under the Securities Act and any
applicable state securities or "Blue Sky" laws.
In addition, such prospective purchaser shall be responsible for providing
additional information or certification, as shall be reasonably requested by the
Owner Trustee or the Depositor, to support the truth and accuracy of the
foregoing acknowledgments, representations
2000-1 TRUST AGREEMENT
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and agreements, it being understood that such additional information is not
intended to create additional restrictions on the transfer of the Certificates.
Neither the Depositor, the Issuer nor the Owner Trustee shall be obligated to
register the Certificates under the Securities Act or any state securities or
"Blue Sky" laws.
In determining compliance with the transfer restrictions contained in this
Section 3.11, the Owner Trustee may rely upon a written opinion of counsel
(which may include in-house counsel of the transferor), the cost of obtaining
which shall be an expense of the Holder of the Certificate to be transferred.
(b) No Certificate may be acquired or held (i) by any "employee
benefit plan" subject to ERISA or a "plan" described by Section 4975(e)(1) of
the Internal Revenue Code of 1986, as amended, or by any entity deemed to hold
the assets of any of the foregoing by reason of an employee benefit plan's or
other plan's investment in such entity (each, a "Benefit Plan"). Each Person
who acquires any Certificate or interest therein shall certify that the
foregoing conditions are satisfied.
SECTION 3.12. Legending of Certificates. Each Certificate shall bear a
legend in substantially the following form, unless the Depositor determines
otherwise in accordance with applicable law:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR ANY
OTHER APPLICABLE SECURITIES OR "BLUE SKY" LAWS OF ANY STATE OR OTHER
JURISDICTION, AND MAY NOT BE RESOLD, ASSIGNED, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT IN COMPLIANCE WITH THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT OR ANY OTHER APPLICABLE SECURITIES OR "BLUE SKY" LAWS,
PURSUANT TO AN EXEMPTION THEREFROM OR IN A TRANSACTION NOT SUBJECT THERETO.
IT AGREES, ON ITS OWN BEHALF AND ON BEHALF OF ANY ACCOUNTS FOR WHICH IT IS
ACTING AS AGENT, THAT SUCH CERTIFICATE MAY BE RESOLD, ASSIGNED, PLEDGED OR
TRANSFERRED ONLY (A) SO LONG AS THE CERTIFICATE IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, SUCH TO A PERSON WHOM THE
TRANSFEROR REASONABLY BELIEVES AFTER DUE INQUIRY IS A QIB ACTING FOR ITS
OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT
FOR OTHERS (WHICH OTHERS ALSO ARE QIBS) TO WHOM NOTICE IS GIVEN THAT THE
RESALE, ASSIGNMENT, PLEDGE OR TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR (C) SUCH RESALE, ASSIGNMENT, PLEDGE OR OTHER TRANSFER IS
MADE IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND OTHER SECURITIES OR "BLUE SKY" LAWS, IN WHICH CASE THE
OWNER TRUSTEE SHALL REQUIRE (I) THAT BOTH THE PROSPECTIVE TRANSFEROR AND
THE
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PROSPECTIVE TRANSFEREE CERTIFY TO THE OWNER TRUSTEE AND THE DEPOSITOR
IN WRITING THE FACTS SURROUNDING SUCH TRANSFER, WHICH CERTIFICATION SHALL
BE IN FORM AND SUBSTANCE SATISFACTORY TO THE OWNER TRUSTEE AND (II) A
WRITTEN OPINION OF COUNSEL (WHICH SHALL NOT BE AT THE EXPENSE OF THE OWNER
TRUSTEE OR THE DEPOSITOR) SATISFACTORY TO THE OWNER TRUSTEE AND THE
DEPOSITOR, TO THE EFFECT THAT SUCH TRANSFER WILL NOT VIOLATE THE SECURITIES
ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES OR "BLUE
SKY" LAWS OF ANY STATE OR JURISDICTION. ANY ATTEMPTED TRANSFER IN
CONTRAVENTION OF THE IMMEDIATELY PRECEDING RESTRICTIONS WILL BE VOID AB
INITIO AND THE PURPORTED TRANSFEROR WILL CONTINUE TO BE TREATED AS THE
OWNER OF THE CERTIFICATE FOR ALL PURPOSES.
NO CERTIFICATE OR INTEREST THEREIN MAY BE ACQUIRED OR HELD (IN THE
INITIAL ACQUISITION OR THROUGH A TRANSFER) WITH PLAN ASSETS OF ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), ANY "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY ENTITY
DEEMED TO HOLD THE ASSETS OF ANY OF THE FOREGOING BY REASON OF AN EMPLOYEE
BENEFIT PLAN'S OR OTHER PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "BENEFIT
PLAN").
ARTICLE IV ACTIONS BY OWNER TRUSTEE.
SECTION 4.1. Prior Notice to Owners with Respect to Certain Matters. With
respect to the following matters, Owner Trustee shall not take action unless at
least 30 days before the taking of such action, Owner Trustee shall have
notified the Certificateholders in writing of the proposed action and the
Certificateholders shall not have notified Owner Trustee in writing prior to the
30th day after such notice is given that such Certificateholders have withheld
consent or provided alternative direction:
(a) the initiation of any material claim or lawsuit by Issuer (except
claims or lawsuits brought in connection with the collection of the
Receivables) and the compromise of any material action, claim or lawsuit
brought by or against Issuer (except with respect to the aforementioned
claims or lawsuits brought in connection with the collection of the
Receivables);
(b) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
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(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the
Certificateholders;
(d) the amendment, change or modification of the Sale and Servicing
Agreement or the Administration Agreement, except to cure any ambiguity or
defect or to amend or supplement any provision in a manner that would not
materially adversely affect the interests of the Certificateholders; or
(e) the appointment pursuant to the Indenture of a successor
Indenture Trustee or the consent to the assignment by the Note Registrar,
Paying Agent or Indenture Trustee or Certificate Registrar of its
obligations under the Indenture or this Agreement, as applicable.
Owner Trustee shall notify the Certificateholders in writing of any appointment
of a successor Paying Agent or Certificate Registrar within five Business Days
thereof.
SECTION 4.2. Action by Certificateholders with Respect to Certain Matters.
Owner Trustee shall not have the power, except upon the direction of the
Certificateholders, to (a) remove Servicer under the Sale and Servicing
Agreement pursuant to Section 8.1 thereof, (b) except as expressly provided in
the Basic Documents, sell the Receivables after the termination of the
Indenture, (c) remove the Administrator under the Administration Agreement
pursuant to Section 9 thereof or (d) appoint a successor Administrator pursuant
to Section 9 of the Administration Agreement. Owner Trustee shall take the
actions referred to in the preceding sentence only upon written instructions
signed by the Certificateholders.
SECTION 4.3. Action by Certificateholders with Respect to Bankruptcy.
Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to Issuer until the Outstanding Amount of all the Notes has
been reduced to zero and without the unanimous prior approval of all
Certificateholders and the delivery to Owner Trustee by each such
Certificateholder of a certificate certifying that such Certificateholder
reasonably believes that Issuer is insolvent.
SECTION 4.4. Restrictions on Certificateholders' Power. The
Certificateholders shall not direct Owner Trustee to take or refrain from taking
any action if such action or inaction would be contrary to any obligation of
Issuer or Owner Trustee under this Agreement or any of the Basic Documents or
would be contrary to Section 2.3 nor shall Owner Trustee be obligated to follow
any such direction, if given.
SECTION 4.5. Certificateholder Control. Except as expressly provided
herein, any action that may be taken by the Certificateholders under this
Agreement may be taken by the Holders of Certificates evidencing not less than a
majority of the Certificate Percentage Interests. Except as expressly provided
herein, any written notice of the Certificateholders delivered pursuant to this
Agreement shall be effective if signed by Certificateholders of Certificates
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evidencing not less than a majority of the Certificate Percentage Interests at
the time of the delivery of such notice.
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES.
SECTION 5.1. Establishment of Certificate Distribution Account. Owner
Trustee, for the benefit of the Certificateholders, shall establish and maintain
in the name of Issuer an Eligible Deposit Account (the "Certificate Distribution
Account"), bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Certificateholders. Except as otherwise
provided herein, the Certificate Distribution Account shall be under the sole
dominion and control of Owner Trustee for the benefit of the Certificateholders.
SECTION 5.2. Application of Funds in Certificate Distribution Account. (a)
On each Distribution Date, Owner Trustee will, or will cause Paying Agent to,
based on the information contained in Servicer's Report delivered on the related
Determination Date pursuant to Section 4.9 of the Sale and Servicing Agreement,
distribute to Certificateholders, as of the related Record Date all amounts
deposited in the Certificate Distribution Account pursuant to the Sale and
Servicing Agreement on such Distribution Date based upon each
Certificateholder's Certificate Percentage Interest:
(b) On each Distribution Date, Owner Trustee shall send, or cause to
be sent, to each Certificateholder the statement provided to Owner Trustee
by Servicer pursuant to Section 5.6 of the Sale and Servicing Agreement on
such Distribution Date.
(c) In the event that any withholding tax is imposed on the Trust's
payment (or allocations of income) to a Certificateholder, such tax shall
reduce the amount otherwise distributable to the Certificateholder in
accordance with this Section. Owner Trustee is hereby authorized and
directed to retain from amounts otherwise distributable to the
Certificateholders sufficient funds for the payment of any tax that is
legally owed by Issuer (but such authorization shall not prevent Owner
Trustee from contesting any such tax in appropriate proceedings, and
withholding payment of such tax, if permitted by law, pending the outcome
of such proceedings). The amount of any withholding tax imposed with
respect to a Certificateholder shall be treated as cash distributed to such
Certificateholder at the time it is withheld by Issuer and remitted to the
appropriate taxing authority. If there is a possibility that withholding
tax is payable with respect to a distribution (such as a distribution to a
non-United States Certificateholder), Owner Trustee may in its sole
discretion withhold such amounts in accordance with this clause (c). In the
event that a Certificateholder wishes to apply for a refund of any such
withholding tax, Owner Trustee shall reasonably cooperate with such
Certificateholder in making such claim so long as such Certificateholder
agrees to reimburse Owner Trustee for any out-of-pocket expenses incurred.
SECTION 5.3. Method of Payment. Subject to Section 9.1(c), distributions
required to be made to Certificateholders on any Distribution Date shall be made
to each Certificateholder of
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record on the preceding Record Date either by wire transfer, in immediately
available funds, to the account of such Certificateholder at a bank or other
entity having appropriate facilities therefor, if (a) such Certificateholder
shall have provided to Certificate Registrar appropriate written instructions at
least five Business Days prior to such Distribution Date (b) such
Certificateholder is the Depositor, or an Affiliate thereof, or, if not, by
check mailed to such Certificateholder at the address of such Certificateholder
appearing in the Certificate Register. Notwithstanding the foregoing, the final
distribution in respect of any Certificate will be payable only upon
presentation and surrender of such Certificate at the office or agency
maintained for that purpose by Owner Trustee pursuant to Section 3.8.
SECTION 5.4. No Segregation of Monies; No Interest. Subject to Sections
5.1 and 5.2, monies received by Owner Trustee or any Paying Agent hereunder need
not be segregated in any manner except to the extent required by law or the
Indenture or the Sale and Servicing Agreement and may be deposited under such
general conditions as may be prescribed by law, and neither Owner Trustee nor
any Paying Agent shall be liable for any interest thereon.
SECTION 5.5. Accounting and Reports to the Noteholders,
Certificateholders, the Internal Revenue Service and Others. Subject to Section
2.6, Owner Trustee shall (a) maintain (or cause to be maintained) the books of
Issuer on a calendar year basis on the accrual method of accounting, (b) deliver
(or cause to be delivered) to each Certificateholder, as may be required by the
Code and applicable Treasury Regulations, such information as may be required
(including Schedule K-1) to enable each Certificateholder to prepare its federal
and state income tax returns, (c) prepare and file such tax returns relating to
Issuer (including a partnership information return, Form 1065, if applicable),
and make such elections as may from time to time be required or appropriate
under any applicable state or federal statute or rule or regulation thereunder
so as to maintain the Issuer's characterization as a partnership for federal
income tax purposes, (d) cause such tax returns to be signed in the manner
required by law and (e) collect or cause to be collected any withholding tax as
described in and in accordance with Section 5.2(c) with respect to income or
distributions to Certificateholders. Owner Trustee shall cooperate with the
Depositor in making all elections pursuant to this Section as directed in
writing by the Depositor. Owner Trustee shall elect under Section 1278 of the
Code to include in income currently any market discount that accrues with
respect to the Receivables and shall elect under Section 171 of the Code to
amortize any bond premium with respect to the Receivables. Owner Trustee shall
not make the election provided under Section 754 of the Code.
SECTION 5.6. Signature on Returns; Tax Matters Partner. (a)
Notwithstanding the provisions of Section 5.5 and subject to Section 2.6,
Depositor shall sign on behalf of Issuer the tax returns of Issuer, unless
applicable law requires Owner Trustee to sign such documents, in which case such
documents shall be signed by Owner Trustee at the written direction of
Depositor.
(b) Subject to Section 2.6, Depositor shall be the "tax matters
partner" of Issuer pursuant to Section 6231(a)(7)(A) of the Code and
applicable Treasury Regulations.
2000-1 TRUST AGREEMENT
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ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE.
SECTION 6.1. General Authority. Owner Trustee is authorized and directed
to execute and deliver the Basic Documents to which Issuer is named as a party
and each certificate or other document attached as an exhibit to or contemplated
by the Basic Documents to which Issuer is named as a party and any amendment
thereto, in each case, in such form as Depositor shall approve, as evidenced
conclusively by Owner Trustee's execution thereof, and on behalf of Issuer at
the written direction of Depositor, to direct Indenture Trustee to authenticate
and deliver Class A-1 Notes in the aggregate principal amount of $230,000,000,
Class A-2 Notes in the aggregate principal amount of $240,000,000, Class A-3
Notes in the aggregate principal amount of $315,000,000, Class A-4 Notes in the
aggregate principal amount of $103,640,000, Class B Notes in the aggregate
principal amount of $28,510,000 and Class C Notes in the aggregate principal
amount of $14,260,000. In addition to the foregoing, Owner Trustee is
authorized, but shall not be obligated, to take all actions required of Issuer
pursuant to the Basic Documents. Owner Trustee is further authorized from time
to time to take such action as Servicer or Administrator recommends or directs
in writing with respect to the Basic Documents, except to the extent that this
Agreement expressly requires the consent of Certificateholders for such action.
SECTION 6.2. General Duties. It shall be the duty of Owner Trustee to
discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Agreement and the other Basic Documents and to administer
Issuer in the interest of Certificateholders, subject to the Basic Documents and
in accordance with the provisions of this Agreement. Notwithstanding the
foregoing, Owner Trustee shall be deemed to have discharged its duties and
responsibilities hereunder and under the Basic Documents to the extent
Administrator has agreed in the Administration Agreement to perform any act or
to discharge any duty of Owner Trustee or Issuer hereunder or under any Basic
Document, and Owner Trustee shall not be liable for the default or failure of
Administrator to carry out its obligations under the Administration Agreement.
Except as expressly provided in the Basic Documents, the Owner Trustee shall
have no obligation to administer, service or collect the Receivables or to
maintain, monitor or otherwise supervise the administration, servicing or
collection of the Receivables.
SECTION 6.3. Action upon Instruction. (a) Subject to Article IV, and in
accordance with the Basic Documents, the Certificateholders may, by written
instruction, direct Owner Trustee in the management of Issuer. Such direction
may be exercised at any time by written instruction of the Certificateholders
pursuant to Article IV.
(b) Owner Trustee shall not be required to take any action hereunder
or under any Basic Document if Owner Trustee shall have reasonably
determined or been advised by counsel that such action is likely to result
in liability on the part of Owner Trustee or is contrary to the terms
hereof or of any Basic Document or is otherwise contrary to law and a copy
of such opinion has been provided to Seller and Servicer.
2000-1 TRUST AGREEMENT
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(c) Whenever Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or
any Basic Document or is unsure as to the application of any provision of
this Agreement or any Basic Document or any such provision is ambiguous as
to its application, or is, or appears to be, in conflict with any other
applicable provision, or in the event that this Agreement permits any
determination by Owner Trustee or is silent or is incomplete as to the
course of action that Owner Trustee is required to take with respect to a
particular set of facts, Owner Trustee shall promptly give notice (in such
form as shall be appropriate under the circumstances) to the
Certificateholders requesting instruction as to the course of action to be
adopted or application of such provision, and to the extent Owner Trustee
acts or refrains from acting in good faith in accordance with any written
instruction of the Certificateholders received, Owner Trustee shall not be
liable on account of such action or inaction to any Person. If the Owner
Trustee receive two or more sets of conflicting instructions, the Owner
Trustee shall act on the instructions from the group of Certificateholders
holding the largest Certificate Percentage Interest. If Owner Trustee
shall not have received appropriate instruction within ten days of such
notice (or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the circumstances) it
may, but shall be under no duty to, take or refrain from taking such
action, not inconsistent with this Agreement or the Basic Documents, as it
shall deem to be in the best interests of the Certificateholders, and shall
have no liability to any Person for such action or inaction.
SECTION 6.4. No Duties Except as Specified in this Agreement or in
Instructions. Owner Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Owner Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which Owner Trustee is a party, except as expressly provided by the terms of
this Agreement or in any document or written instruction received by Owner
Trustee pursuant to Section 6.3; and no implied duties or obligations shall be
read into this Agreement or any Basic Document against Owner Trustee. Owner
Trustee shall have no responsibility for filing any financing or continuation
statement in any public office at any time or to otherwise perfect or maintain
the perfection of any security interest or lien granted to it hereunder or to
prepare or file any Commission filing for Issuer or to record this Agreement or
any Basic Document. Owner Trustee nevertheless agrees that it will, at its own
cost and expense, promptly take all action as may be necessary to discharge any
Liens on any part of the Owner Trust Estate that result from actions by, or
claims against, Owner Trustee that are not related to the ownership or the
administration of the Owner Trust Estate.
SECTION 6.5. No Action Except under Specified Documents or Instructions.
Owner Trustee shall not manage, control, use, sell, dispose of or otherwise deal
with any part of the Owner Trust Estate except (i) in accordance with the powers
granted to and the authority conferred upon Owner Trustee pursuant to this
Agreement, (ii) in accordance with the Basic Documents and (iii) in accordance
with any document or instruction delivered to Owner Trustee pursuant to Section
6.3.
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SECTION 6.6. Restrictions. Owner Trustee shall not take any action (a)
that is inconsistent with the purposes of Issuer set forth in Section 2.3 or (b)
that, to the actual knowledge of Owner Trustee, would (i) affect the treatment
of the Notes as indebtedness for federal income, state and local income and
franchise tax purposes, (ii) be deemed to cause a taxable exchange of the Notes
for federal income or state income or franchise tax purposes or (iii) cause
Issuer or any portion thereof to be treated as an association or publicly traded
partnership taxable as a corporation for federal income, state and local income
or franchise tax purposes. The Certificateholders shall not direct Owner
Trustee to take action that would violate the provisions of this Section.
ARTICLE VII CONCERNING OWNER TRUSTEE.
SECTION 7.1. Acceptance of Trusts and Duties. Owner Trustee accepts the
trusts hereby created and agrees to perform its duties hereunder with respect to
such trusts but only upon the terms of this Agreement. Owner Trustee also agrees
to disburse all moneys actually received by it constituting part of the Owner
Trust Estate upon the terms of the Basic Documents and this Agreement. Owner
Trustee shall not be answerable or accountable hereunder or under any Basic
Document under any circumstances, except (i) for its own willful misconduct, bad
faith or gross negligence, (ii) in the case of the inaccuracy of any
representation or warranty contained in Section 7.3 expressly made by Owner
Trustee in its individual capacity, (iii) for liabilities arising from the
failure of the Owner Trustee to perform obligations expressly undertaken by it
in the last sentence of Section 6.4 or (iv) for taxes, fees or other charges on,
based on or measured by, any fees, commissions or compensation received by the
Owner Trustee. In particular, but not by way of limitation (and subject to the
exceptions set forth in the preceding sentence):
(a) Owner Trustee shall not be liable for any error of judgment made
by a Responsible Officer of Owner Trustee;
(b) Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions of
Depositor, Servicer, Administrator or any Certificateholder;
(c) no provision of this Agreement or any Basic Document shall
require Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers
hereunder or under any Basic Document if Owner Trustee shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or
provided to it;
(d) under no circumstances shall Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Notes or amounts
distributable on the Certificates;
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(e) Owner Trustee shall not be responsible for or in respect of the
validity or sufficiency of this Agreement or for the due execution hereof
by Depositor or for the form, character, genuineness, sufficiency, value or
validity of any of the Owner Trust Estate or for or in respect of the
validity or sufficiency of the Basic Documents, other than the certificate
of authentication on the Certificates, and Owner Trustee shall in no event
assume or incur any liability, duty or obligation to any Noteholder or to
any Certificateholder, other than as expressly provided for herein and in
the Basic Documents;
(f) Owner Trustee shall not be liable for the default or misconduct
of Indenture Trustee, Servicer, Custodian or Administrator under any of the
Basic Documents or otherwise and Owner Trustee shall have no obligation or
liability to perform the obligations of Issuer under this Agreement or the
Basic Documents that are required to be performed by Indenture Trustee
under the Indenture, Servicer or Custodian under the Sale and Servicing
Agreement or Administrator under the Administration Agreement; and
(g) Owner Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement, or to institute, conduct
or defend any litigation under this Agreement or otherwise or in relation
to this Agreement or any Basic Document, at the request, order or written
direction of any of the Certificateholders, unless such Certificateholders
have offered to Owner Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities that may be incurred by Owner
Trustee therein or thereby. The right of Owner Trustee to perform any
discretionary act enumerated in this Agreement or in any Basic Document
shall not be construed as a duty, and Owner Trustee shall not be answerable
for other than its negligence, bad faith or willful misconduct in the
performance of any such act.
SECTION 7.2. Furnishing of Documents. Owner Trustee shall furnish to the
Certificateholders promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to Owner Trustee under
the Basic Documents.
SECTION 7.3. Representations and Warranties. The Chase Manhattan Bank
hereby represents and warrants to Depositor, for the benefit of the
Certificateholders, that:
(a) It is a New York banking corporation duly organized and validly
existing in good standing under the laws of the State of New York and
having an office within the State of New York. It has all requisite
corporate power and authority to execute, deliver and perform its
obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by
2000-1 TRUST AGREEMENT
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one of its officers who is duly authorized to execute and deliver this
Agreement on its behalf.
(c) This Agreement constitutes a legal, valid and binding obligation
of Owner Trustee, enforceable against Owner Trustee 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 of banks
generally and to equitable limitations on the availability of specific
remedies.
(d) Neither the execution nor the delivery by it of this Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will contravene
any federal or New York law, governmental rule or regulation governing the
banking or trust powers of Owner Trustee or any judgment or order binding
on it, or constitute any default under its charter documents or by-laws or
any indenture, mortgage, contract, agreement or instrument to which it is a
party or by which any of its properties may be bound.
SECTION 7.4. Reliance; Advice of Counsel. (a) Owner Trustee shall incur no
liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond or other
document or paper believed by it to be genuine and believed by it to be signed
by the proper party or parties. Owner Trustee may accept a certified copy of a
resolution of the board of directors or other governing body of any corporate
party as conclusive evidence that such resolution has been duly adopted by such
body and that the same is in full force and effect. As to any fact or matter the
method of the determination of which is not specifically prescribed herein,
Owner Trustee may for all purposes hereof rely on a certificate, signed by the
president or any vice president or by the treasurer, secretary or other
authorized officers of the relevant party, as to such fact or matter, and such
certificate shall constitute full protection to Owner Trustee for any action
taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the
Basic Documents, Owner Trustee (i) may act directly or through its agents
or attorneys pursuant to agreements entered into with any of them, but
Owner Trustee shall not be liable for the conduct or misconduct of such
agents, custodians, nominees (including persons acting under a power of
attorney) or attorneys selected with reasonable care and (ii) may consult
with counsel, accountants and other skilled persons knowledgeable in the
relevant area to be selected with reasonable care and employed by it at the
expense of the Trust. Owner Trustee shall not be liable for anything done,
suffered or omitted in good faith by it in accordance with the written
opinion or advice of any such counsel, accountants or other such persons
and not contrary to this Agreement or any Basic Document.
2000-1 TRUST AGREEMENT
20
SECTION 7.5. Not Acting in Individual Capacity. Except as provided in this
Article VII, in accepting the trusts hereby created, The Chase Manhattan Bank
acts solely as Owner Trustee hereunder and not in its individual capacity and
all Persons having any claim against Owner Trustee by reason of the transactions
contemplated by this Agreement or any Basic Document shall look only to the
Owner Trust Estate for payment or satisfaction thereof.
SECTION 7.6. Owner Trustee Not Liable for Certificates or Receivables. The
recitals contained herein and in the Certificates (other than the signature and
countersignature of Owner Trustee on the Certificates) shall be taken as the
statements of Depositor, and Owner Trustee assumes no responsibility for the
correctness thereof. Owner Trustee makes no representations as to the validity
or sufficiency of this Agreement, of any Basic Document or of the Certificates
(other than the signature and countersignature of Owner Trustee on the
Certificates) or the Notes, or of any Receivable or related documents. Owner
Trustee shall at no time have any responsibility or liability for or with
respect to the legality, validity and enforceability of any Receivable, or the
perfection and priority of any security interest created by any Receivable in
any Financed Vehicle or the maintenance of any such perfection and priority, or
for or with respect to the sufficiency of the Owner Trust Estate or its ability
to generate the payments to be distributed to Certificateholders under this
Agreement or the Noteholders under the Indenture, including: the existence,
condition and ownership of any Financed Vehicle; the existence and
enforceability of any insurance thereon; the existence and contents of any
Receivable on any computer or other record thereof; the validity of the
assignment of any Receivable to Issuer or of any intervening assignment; the
completeness of any Receivable; the performance or enforcement of any
Receivable; the compliance by Depositor or Servicer with any warranty or
representation made under any Basic Document or in any related document or the
accuracy of any such warranty or representation or any action of Indenture
Trustee, Administrator or Servicer or any subservicer taken in the name of Owner
Trustee.
SECTION 7.7. Owner Trustee May Own Certificates and Notes. Owner Trustee
in its individual or any other capacity may become the owner or pledgee of
Certificates or Notes and may deal with Depositor, Indenture Trustee,
Administrator and Servicer in banking transactions with the same rights as it
would have if it were not Owner Trustee.
ARTICLE VII COMPENSATION OF OWNER TRUSTEE.
SECTION 8.1. Owner Trustee's Fees and Expenses. Depositor shall cause
Administrator to pay to Owner Trustee from time to time reasonable compensation
for all services rendered by Owner Trustee under this Agreement (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust). Except as otherwise expressly
provided for in this Agreement, Depositor shall cause Administrator to reimburse
Owner Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by Owner Trustee in accordance with any provision of
this Agreement (including the reasonable compensation, expenses and
disbursements of such agents and counsel as Owner Trustee may employ in
connection with the
2000-1 TRUST AGREEMENT
21
exercise and performance of its rights and its duties hereunder), except any
such expense may be attributable to its willful misconduct, gross negligence or
bad faith.
SECTION 8.2. Indemnification. Depositor shall cause the Administrator to
indemnify Owner Trustee and its successors, assigns, directors, officers,
employees and agents from and against, any and all loss, liability and expense
(including reasonable legal fees and expenses) of any kind and nature whatsoever
which may at any time be imposed on, incurred by, or asserted against Owner
Trustee or any Indemnified Party in any way relating to or arising out of this
Agreement, the Basic Documents, the Owner Trust Estate, the administration of
the Owner Trust Estate or the action or inaction of Owner Trustee hereunder,
provided, however, that the Administrator shall not be liable for or required to
indemnify Owner Trustee from and against any of the foregoing expenses arising
or resulting from any of the matters described in the third sentence of Section
7.1.
SECTION 8.3. Payments to Owner Trustee. Any amounts paid to Owner Trustee
pursuant to this Article VIII and the Administration Agreement shall be deemed
not to be a part of the Owner Trust Estate immediately after such payment.
ARTICLE IX TERMINATION OF TRUST AGREEMENT.
SECTION 9.1. Termination of Trust Agreement. (a) This Agreement (other
than Article VIII) and Issuer shall terminate and be of no further force or
effect, upon the final distribution by Owner Trustee of all moneys or other
property or proceeds of the Owner Trust Estate in accordance with the terms of
the Indenture, the Sale and Servicing Agreement and Article V; provided,
however, that in no event shall the Trust created by this Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the Court of St. Xxxxx,
living on the date of this Agreement. The bankruptcy, liquidation,
dissolution, death or incapacity of any Certificateholder shall not (x) operate
to terminate this Agreement or Issuer, nor (y) entitle such Certificateholder's
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of
Issuer or Owner Trust Estate nor (z) otherwise affect the rights, obligations
and liabilities of the parties hereto.
(b) Except as provided in clause (a), neither Depositor nor any
Certificateholder shall be entitled to revoke or terminate the Issuer.
(c) Notice of any termination of Issuer, specifying the Distribution
Date upon which the Certificateholders shall surrender their Certificates
to Paying Agent for payment of the final distribution and cancellation,
shall be given by Owner Trustee by letter to Certificateholders mailed
within five Business Days of receipt of notice of such termination from
Servicer given pursuant to Section 9.1(c) of the Sale and Servicing
Agreement, stating (i) the Distribution Date upon or with respect to which
final payment of the Certificates shall be made upon presentation and
surrender of the Certificates at the office of Paying Agent therein
designated, (ii) the amount of any such final payment and
2000-1 TRUST AGREEMENT
22
(iii) that the Record Date otherwise applicable to such Distribution Date
is not applicable, payments being made only upon presentation and surrender
of the Certificates at the office of Paying Agent therein specified. Owner
Trustee shall give such notice to Certificate Registrar (if other than
Owner Trustee) and Paying Agent at the time such notice is given to
Certificateholders. Upon presentation and surrender of the Certificates,
Paying Agent shall cause to be distributed to Certificateholders amounts
distributable on such Distribution Date pursuant to Section 5.2.
If all of the Certificateholders shall not surrender their Certificates for
cancellation within sixty (60) days after the date specified in the above
mentioned written notice, Owner Trustee shall give a second written notice to
the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
sixty (60) days after the second notice all the Certificates shall not have been
surrendered for cancellation, Owner Trustee may take appropriate steps, or may
appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets that shall remain
subject to this Agreement. Any funds remaining after exhaustion of such remedies
shall be distributed, subject to applicable escheat laws, by Owner Trustee to
Depositor.
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL
OWNER TRUSTEES.
SECTION 10.1. Eligibility Requirements for Owner Trustee. Owner Trustee
shall at all times be a bank (i) authorized to exercise corporate trust powers,
(ii) having a combined capital and surplus of at least $50,000,000 and (iii)
subject to supervision or examination by Federal or state authorities. If such
bank shall publish reports of condition at least annually, pursuant to law or to
the requirements of the aforesaid supervising or examining authority, then for
the purpose of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time Owner
Trustee shall cease to be eligible in accordance with the provisions of this
Section, Owner Trustee shall resign immediately in the manner and with the
effect specified in Section 10.2.
SECTION 10.2. Resignation or Removal of Owner Trustee. Owner Trustee may at
any time resign and be discharged from the trusts hereby created by giving
written notice thereof to Administrator. Upon receiving such notice of
resignation, Administrator shall promptly appoint a successor Owner Trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Owner Trustee and one copy to the successor Owner
Trustee. If no successor Owner Trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Owner Trustee may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee; provided,
however, that such right to appoint or to petition for the appointment of any
such successor shall in no event relieve the resigning Owner Trustee from any
obligations otherwise
2000-1 TRUST AGREEMENT
23
imposed on it under the Basic Documents until such successor has in fact assumed
such appointment.
If at any time Owner Trustee shall cease to be eligible in accordance with
the provisions of Section 10.1 and shall fail to resign after written request
therefor by Administrator, or if at any time Owner Trustee shall be legally
unable to act, or shall be adjudged bankrupt or insolvent, or a receiver of
Owner Trustee or of its property shall be appointed, or any public officer shall
take charge or control of Owner Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then Administrator may
remove Owner Trustee. If Administrator shall remove Owner Trustee under the
authority of the immediately preceding sentence, Administrator shall promptly
appoint a successor Owner Trustee by written instrument, in duplicate, one copy
of which instrument shall be delivered to the outgoing Owner Trustee so removed
and one copy to the successor Owner Trustee and payment of all fees owed to the
outgoing Owner Trustee.
Any resignation or removal of Owner Trustee and appointment of a successor
Owner Trustee pursuant to any of the provisions of this Section shall not become
effective until acceptance of appointment by the successor Owner Trustee
pursuant to Section 10.3 and payment of all fees and expenses owed to the
outgoing Owner Trustee. Administrator shall provide notice of such resignation
or removal of Owner Trustee to each of the Rating Agencies.
SECTION 10.3. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 10.2 shall execute, acknowledge and deliver to
Administrator and to its predecessor Owner Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal of
the predecessor Owner Trustee shall become effective and such successor Owner
Trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor under
this Agreement, with like effect as if originally named as Owner Trustee. The
predecessor Owner Trustee shall upon payment of its fees and expenses deliver to
the successor Owner Trustee all documents and statements and monies held by it
under this Agreement; and Administrator and the predecessor Owner Trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required for fully and certainly vesting and confirming in the successor
Owner Trustee all such rights, powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee shall
be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, Administrator shall mail notice of the successor of such Owner
Trustee to all Certificateholders, Indenture Trustee, the Noteholders and each
of the Rating Agencies. If Administrator shall fail to mail such notice within
10 days after acceptance of appointment by the successor Owner Trustee, the
successor Owner Trustee shall cause such notice to be mailed at the expense of
Administrator.
2000-1 TRUST AGREEMENT
24
SECTION 10.4. Merger or Consolidation of Owner Trustee. Any corporation
into which Owner Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which Owner Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of Owner
Trustee, shall, without the execution or filing of any instrument or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding, be the successor of Owner Trustee hereunder; provided that such
corporation shall be eligible pursuant to Section 10.1; and provided further
that Owner Trustee shall mail notice of such merger or consolidation to the
Rating Agencies.
SECTION 10.5. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Owner Trust Estate or any Financed Vehicle may at the time be located,
Administrator and Owner Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
Owner Trustee to act as co-trustee, jointly with Owner Trustee, or separate
trustee or separate trustees, of all or any part of the Owner Trust Estate, and
to vest in such Person, in such capacity, such title to Issuer, or any part
thereof, and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as Administrator and Owner Trustee may
consider necessary or desirable. If Administrator shall not have joined in such
appointment within 15 days after the receipt by it of a request so to do, Owner
Trustee alone shall have the power to make such appointment. No co-trustee or
separate trustee under this Agreement shall be required to meet the terms of
eligibility as a successor trustee pursuant to Section 10.1 and no notice of the
appointment of any co-trustee or separate trustee shall be required pursuant to
Section 10.3.
Each separate trustee and co-trustee shall, to the extent permitted by law,
be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon Owner Trustee shall be conferred upon and exercised or
performed by Owner Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without Owner Trustee joining in
such act), except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed, Owner Trustee
shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the
holding of title to Issuer or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of Owner Trustee;
(ii) no trustee under this Agreement shall be personally liable
by reason of any act or omission of any other trustee under this
Agreement; and
2000-1 TRUST AGREEMENT
25
(iii) Administrator and Owner Trustee acting jointly may at any
time accept the resignation of or remove any separate trustee or co-
trustee.
Any notice, request or other writing given to Owner Trustee shall be deemed
to have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with Owner Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, Owner Trustee. Each
such instrument shall be filed with Owner Trustee and a copy thereof given to
Administrator.
Any separate trustee or co-trustee may at any time appoint Owner Trustee,
its agent or attorney-in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement on
its behalf and in its name. If any separate trustee or co-trustee shall become
incapable of acting, resign or be removed, all of its estates, properties,
rights, remedies and trusts shall vest in and be exercised by Owner Trustee, to
the extent permitted by law, without the appointment of a new or successor
trustee.
ARTICLE XI MISCELLANEOUS.
SECTION 11. Supplements and Amendments. (a) This Agreement may be
amended by Depositor and Owner Trustee, with prior written notice to the Rating
Agencies, 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, 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 each Rating Agency shall
have notified the Depositor, the Servicer, Indenture Trustee and the
Owner Trustee in writing that
2000-1 TRUST AGREEMENT
26
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 recognized as a sale
under GAAP by Depositor to Issuer, (b) Issuer to avoid becoming a
member of Depositor's consolidated group under GAAP or (c) the
Depositor or any of their Affiliates to otherwise comply with or
obtain more favorable treatment under any law or regulation or any
accounting rule or principle; it being a Condition to any such
amendment that the Rating Agency Condition shall have been satisfied.
(b) This Agreement may also be amended from time to time by Depositor and
Owner Trustee, with prior written notice to the Rating Agencies, with the
consent of the Holders of Notes evidencing not less than a majority of the
Outstanding Amount of the Notes and, to the extent affected thereby, 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 (a) 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 (b) reduce the
aforesaid percentage of the Outstanding Amount of the Notes and the Certificate
Percentage Interests required to consent to any such amendment, without the
consent of the Holders of all the outstanding Notes and Holders of all
outstanding Certificates.
(c) Promptly after the execution of any such amendment or consent, Owner
Trustee shall furnish written notification of the substance of such amendment or
consent to each Certificateholder, Indenture Trustee and each of the Rating
Agencies.
(d) It shall not be necessary for the consent of Certificateholders, the
Noteholders or Indenture Trustee pursuant to this Section to approve the
particular form of any proposed amendment or consent, but it shall be sufficient
if such consent, where required, shall approve the substance thereof. The manner
of obtaining such consents (and any other consents of Certificateholders
provided for in this Agreement or in any other Basic Document) and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable requirements as Owner Trustee may prescribe.
(e) Promptly after the execution of any amendment to the Certificate of
Trust, Owner Trustee shall cause the filing of such amendment with the Secretary
of State.
(f) Prior to the execution of any amendment to this Agreement Owner
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
2000-1 TRUST AGREEMENT
27
execution and delivery of such amendment have been satisfied. Owner Trustee may,
but shall not be obligated to, enter into any such amendment which affects Owner
Trustee's own rights, duties or immunities under this Agreement or otherwise.
SECTION 11.2. No Legal Title to Owner Trust Estate in Certificateholders.
The Certificateholders shall not have legal title to any part of the Owner Trust
Estate. The Certificateholders shall be entitled to receive distributions with
respect to their undivided ownership interest therein only in accordance with
Articles V and IX. No transfer, by operation of law or otherwise, of any right,
title or interest of the Certificateholders to and in their ownership interest
in the Owner Trust Estate shall operate to terminate this Agreement or the
trusts hereunder or entitle any transferee to an accounting or to the transfer
to it of legal title to any part of the Owner Trust Estate.
SECTION 11.3. Limitations on Rights of Others. Except for Section 2.7,
the provisions of this Agreement are solely for the benefit of Owner Trustee,
Issuer, Depositor, Administrator, Certificateholders, Servicer and, to the
extent expressly provided herein, Indenture Trustee and the Noteholders, 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 11.4. Notices. (a) Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given by telecopy with receipt acknowledged by the recipient thereof or
upon receipt personally delivered, delivered by overnight courier or mailed
certified mail, return receipt requested, if to Owner Trustee, addressed to the
Corporate Trust Office; if to Depositor, addressed to 0000 0xx Xxxxxx Xxxxx,
XxXxxxx/XXXXX Xxxxx, Xxxxxxxxxx, Xxxxxxx, 00000 Attention: R. Xxxx Xxxx; or, as
to each party, at such other address as shall be designated by such party in a
written notice to each other party.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at
the address of such Certificateholder as shown in the Certificate Register.
Any notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
SECTION 11.5. 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 invalidate or render
unenforceable such provision in any other jurisdiction.
2000-1 TRUST AGREEMENT
28
SECTION 11.6. 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 11.7. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, Depositor,
Owner Trustee and its successors and each Certificateholder and its successors
and permitted assigns, all as herein provided. Any request, notice, direction,
consent, waiver or other instrument or action by a Certificateholder shall bind
the successors and assigns of such Certificateholder.
SECTION 11.8. No Petition. Owner Trustee (not in its individual capacity
but solely as Owner Trustee), by entering into this Agreement, each
Certificateholder, by accepting a Certificate, and Indenture Trustee and each
Noteholder or Note Owner by accepting the benefits of this Agreement, hereby
covenants and agrees that they will not at any time institute against Depositor,
or solicit or join in or cooperate with or encourage any institution against
Depositor of any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States Federal or
state bankruptcy or similar law in connection with any obligations relating to
the Certificates, the Notes, this Agreement or any of the Basic Documents.
SECTION 11.9. No Recourse. (a) Each Certificateholder by accepting a
Certificate acknowledges that such Certificateholder's Certificates represent
beneficial interests in Issuer only and do not represent interests in or
obligations of Seller, Servicer, Administrator, Depositor, Owner Trustee,
Indenture Trustee or any Affiliate thereof and no recourse may be had against
such parties or their assets, except as expressly set forth or contemplated in
this Agreement, the Certificates or the Basic Documents.
(b) In furtherance of and not in derogation of the foregoing, to the
extent Depositor enters into other securitization transactions, each
Certificateholder, by accepting a Certificate, acknowledges and agrees that it
shall have no right, title or interest in or to any assets or interests therein
of Depositor (other than the Trust Estate and Reserve Account relating to this
transaction) conveyed or purported to be conveyed by Depositor to another
securitization trust or other Person or Persons in connection therewith (whether
by way of a sale, capital contribution or by virtue of the granting of a lien)
("Other Assets"). To the extent that, notwithstanding the agreements and
provisions contained in the preceding sentences of this Section, a
Certificateholder either (i) asserts an interest or claim to, or benefit from,
Other Assets, whether asserted against or through Depositor or any other Person
owned by Depositor, or (ii) is deemed to have any such interest, claim or
benefit in or from Other Assets, whether by operation of law, legal process,
pursuant to applicable provisions of insolvency laws or otherwise (including by
virtue of Section 1111(b) of the Federal Bankruptcy Code or any successor
provision having similar effect under the Bankruptcy Code), and whether deemed
asserted against or through Depositor or any other Person owned by Depositor,
then each Certificateholder, by accepting a Certificate, further acknowledges
and agrees that any such interest, claim or benefit in or from Other Assets is
and shall be expressly subordinated to the indefeasible payment in full of all
2000-1 TRUST AGREEMENT
29
obligations and liabilities of Depositor which, under the terms of the relevant
documents relating to the securitization of such Other Assets, are entitled to
be paid from, entitled to the benefits of, or otherwise secured by such Other
Assets (whether or not any such entitlement or security interest is legally
perfected or otherwise entitled to priority of distribution or application under
applicable law, including insolvency laws, and whether asserted against
Depositor or any other Person owned by Depositor), including the payment of
post-petition interest on such other obligations and liabilities. This
subordination agreement shall be deemed a subordination agreement within the
meaning of Section 510(a) of the Bankruptcy Code. Each Certificateholder, by
acceptance of a Certificate, further acknowledges and agrees that no adequate
remedy at law exists for a breach of this Section 11.9(b) and the terms of this
Section 11.9(b) may be enforced by an action for specific performance. The
provisions of this Section 11.9(b) shall be for the third party benefit of those
entitled to rely thereon and shall survive the termination of this Agreement.
SECTION 11.10. 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 11.11. 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 11.12. Servicer. Servicer is authorized to execute on behalf of
Issuer all such documents, reports, filings, instruments, certificates and
opinions as it shall be the duty of Issuer to prepare, file or deliver pursuant
to the Basic Documents. Upon written request, Owner Trustee shall execute and
deliver to Servicer a power of attorney appointing Servicer as Issuer's agent
and attorney-in-fact to execute all such documents, reports, filings,
instruments, certificates and opinions.
SECTION 11.13. Sale and Servicing Agreement. Owner Trustee is hereby
authorized and directed to perform the duties and obligations of the Owner
Trustee set forth in Sections 3.2, 4.4(b), 4.7, 5.1(c), and 8.4 of the Sale and
Servicing Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed by their respective officers hereunto duly authorized as of the
day and year first above written.
THE CHASE MANHATTAN BANK,
as Owner Trustee
By: /s/ Xxxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
AMSOUTH AUTO RECEIVABLES LLC,
as Depositor
By: /s/ R. Xxxx Xxxx
-----------------------------------
Name: R. Xxxx Xxxx
Title: President
2000-1 TRUST AGREEMENT
31
EXHIBIT A
FORM OF CERTIFICATE
NUMBER $100% CERTIFICATE PERCENTAGE INTEREST
R-1
AMSOUTH AUTO TRUST 2000-1
ASSET BACKED CERTIFICATE
Evidencing a beneficial ownership interest in certain distributions of
Issuer, as defined below, the property of which includes a pool of Motor Vehicle
Loans sold to Issuer by Seller.
(This Certificate does not represent an interest in or obligation of
AmSouth Auto Receivables LLC or any of its Affiliates, except to the extent
described below.)
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR ANY OTHER
APPLICABLE SECURITIES OR "BLUE SKY" LAWS OF ANY STATE OR OTHER JURISDICTION, AND
MAY NOT BE RESOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN
COMPLIANCE WITH THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR ANY OTHER
APPLICABLE SECURITIES OR "BLUE SKY" LAWS, PURSUANT TO AN EXEMPTION THEREFROM OR
IN A TRANSACTION NOT SUBJECT THERETO. IT AGREES, ON ITS OWN BEHALF AND ON
BEHALF OF ANY ACCOUNTS FOR WHICH IT IS ACTING AS AGENT, THAT SUCH CERTIFICATE
MAY BE RESOLD, ASSIGNED, PLEDGED OR TRANSFERRED ONLY (A) SO LONG AS THE
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT, SUCH TO A PERSON WHOM THE TRANSFEROR REASONABLY BELIEVES AFTER DUE INQUIRY
IS A QIB ACTING FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A
FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QIBS) TO WHOM NOTICE IS
GIVEN THAT THE RESALE, ASSIGNMENT, PLEDGE OR TRANSFER IS BEING MADE IN RELIANCE
ON RULE 144A, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR (C) SUCH RESALE, ASSIGNMENT, PLEDGE OR OTHER TRANSFER IS MADE
IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND OTHER SECURITIES OR "BLUE SKY" LAWS, IN WHICH CASE THE OWNER TRUSTEE SHALL
REQUIRE (I) THAT BOTH THE PROSPECTIVE TRANSFEROR AND THE PROSPECTIVE TRANSFEREE
CERTIFY TO THE OWNER TRUSTEE AND THE DEPOSITOR IN WRITING THE FACTS SURROUNDING
SUCH TRANSFER, WHICH CERTIFICATION SHALL BE IN FORM AND SUBSTANCE SATISFACTORY
TO THE OWNER TRUSTEE AND (II) A WRITTEN OPINION OF COUNSEL (WHICH SHALL NOT BE
AT THE EXPENSE OF THE OWNER TRUSTEE OR THE
Exhibit A, Page 1
DEPOSITOR) SATISFACTORY TO THE OWNER TRUSTEE AND THE DEPOSITOR, TO THE EFFECT
THAT SUCH TRANSFER WILL NOT VIOLATE THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES OR "BLUE SKY" LAWS OF ANY STATE OR
JURISDICTION. ANY ATTEMPTED TRANSFER IN CONTRAVENTION OF THE IMMEDIATELY
PRECEDING RESTRICTIONS WILL BE VOID AB INITIO AND THE PURPORTED TRANSFEROR WILL
CONTINUE TO BE TREATED AS THE OWNER OF THE CERTIFICATE FOR ALL PURPOSES.
NO CERTIFICATE OR INTEREST THEREIN MAY BE ACQUIRED OR HELD (IN THE INITIAL
ACQUISITION OR THROUGH A TRANSFER) WITH PLAN ASSETS OF ANY "EMPLOYEE BENEFIT
PLAN" SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), ANY "PLAN" DESCRIBED BY SECTION 4975(E)(1) OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED, OR ANY ENTITY DEEMED TO HOLD THE ASSETS OF ANY OF THE
FOREGOING BY REASON OF AN EMPLOYEE BENEFIT PLAN'S OR OTHER PLAN'S INVESTMENT IN
SUCH ENTITY (EACH, A "BENEFIT PLAN").
Exhibit A, Page 2
THIS CERTIFIES THAT AMSOUTH AUTO RECEIVABLES LLC is the registered owner of
a 100% Certificate Percentage Interest that is nonassessable, fully-paid,
beneficial ownership interest in certain distributions of AMSOUTH AUTO TRUST
2000-1 ("Issuer") formed by AmSouth Auto Receivables LLC, a Delaware limited
liability company ("Depositor").
Issuer was created pursuant to an Amended and Restated Trust Agreement
dated as of October 1, 2000 (the "Trust Agreement"), between Depositor and The
Chase Manhattan Bank, as owner trustee ("Owner Trustee"), a summary of certain
of the pertinent provisions of which is set forth below. To the extent not
otherwise defined herein, the capitalized terms used herein have the meanings
assigned to them in Appendix X to the Sale and Servicing Agreement among Issuer,
AmSouth Auto Receivables LLC, as Seller ("Seller"), AmSouth Bank as Servicer
("Servicer"), and The Bank of New York Trust Company of Florida, National
Association, as Indenture Trustee ("Indenture Trustee"), dated as of October 1,
2000, as the same may be amended or supplemented from time to time.
This Certificate is one of the duly authorized Certificates designated as
AmSouth Auto Trust 2000-1 Asset Backed Certificates (herein called the
"Certificates"). Also issued under the Indenture dated as of October 1, 2000,
between Issuer and Indenture Trustee, are six classes of Notes designated as
6.745% Class A-1 Asset Backed Notes (the "Class A-1 Notes"), 6.700% Class A-2
Asset Backed Notes (the "Class A-2 Notes"), 6.670% Class A-3 Asset Backed Notes
(the "Class A-3 Notes"), 6.760% Class A-4 Asset Backed Notes (the "Class A-4
Notes" and, together with the Class A-1 Notes, the Class A-2 Notes and the Class
A-3 Notes, the "Notes"), 7.080% Class B Asset Backed Notes (the "Class B Notes")
and 7.440% Class C Asset Backed Notes (the "Class C Notes", and together with
the Class A Notes and the Class B Notes, the "Notes"). This Certificate is
issued under and is subject to the terms, provisions and conditions of the Trust
Agreement, to which Trust Agreement the holder of this Certificate by virtue of
the acceptance hereof assents and by which such holder is bound.
Under the Trust Agreement, there will be distributed on the 15/th/ day of
each month (or, if such 15/th/ day is not a Business Day, the next Business
Day), commencing on November 15, 2000, to the Person in whose name this
Certificate is registered at the close of business on the last day of the
preceding month, such Certificateholder's Certificate Percentage Interest in the
amount to be distributed to Certificateholders on such date.
The holder of this Certificate acknowledges and agrees that its rights to
receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders as described in the Sale and Servicing Agreement, the
Indenture and the Trust Agreement, as applicable.
It is the intent of the Depositor, Servicer and the Certificateholders
that, for purposes of federal income, state and local income and franchise tax,
until the Trust Certificates are held by other than the Depositor, the Issuer
will be disregarded as an entity separate from its owner. At
Exhibit A, Page 3
such time that the Certificates are held by more than one person, it is the
intent of the Seller, Servicer and the Certificateholders that, for purposes of
federal income, state and local income and franchise tax, the Issuer will be
treated as a partnership, the assets of which are the assets held by the Issuer,
and the Certificateholders will be treated as partners in that partnership. The
Seller and the other Certificateholders, by acceptance of a Certificate, agree
to treat, and to take no action inconsistent with the treatment of, the
Certificates as such for tax purposes.
Each Certificateholder, by its acceptance of a Certificate, covenants and
agrees that such Certificateholder will not at any time institute against
Depositor, or join in or encourage any institution against Depositor of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States federal or state bankruptcy or
similar law in connection with any obligations relating to the Certificates, the
Notes, the Trust Agreement or any of the Basic Documents.
Each Certificateholder by accepting a Certificate acknowledges that such
Certificateholder's Certificates represent beneficial interests in Issuer only
and do not represent interests in or obligations of Depositor, Servicer,
Administrator, Seller, Owner Trustee, Indenture Trustee or any Affiliate thereof
and no recourse may be had against such parties or their assets, except as
expressly set forth or contemplated in the Trust Agreement, the Certificates or
the Basic Documents.
In furtherance of and not in derogation of the foregoing, to the extent
Depositor enters into other securitization transactions, each Certificateholder,
by accepting a Certificate, acknowledges and agrees that it shall have no right,
title or interest in or to any assets or interests therein of Depositor (other
than the Trust Estate and Reserve Account relating to this transaction) conveyed
or purported to be conveyed by Depositor to another securitization trust or
other Person or Persons in connection therewith (whether by way of a sale,
capital contribution or by virtue of the granting of a lien) ("Other Assets").
To the extent that, notwithstanding the agreements and provisions contained
herein, a Certificateholder either (i) asserts an interest or claim to, or
benefit from, Other Assets, whether asserted against or through Depositor or any
other Person owned by Depositor, or (ii) is deemed to have any such interest,
claim or benefit in or from Other Assets, whether by operation of law, legal
process, pursuant to applicable provisions of insolvency laws or otherwise
(including by virtue of Section 1111(b) of the Federal Bankruptcy Code or any
successor provision having similar effect under the Bankruptcy Code), and
whether deemed asserted against or through Depositor or any other Person owned
by Depositor, then each Certificateholder, by accepting a Certificate, further
acknowledges and agrees that any such interest, claim or benefit in or from
Other Assets is and shall be expressly subordinated to the indefeasible payment
in full of all obligations and liabilities of Depositor which, under the terms
of the relevant documents relating to the securitization of such Other Assets,
are entitled to be paid from, entitled to the benefits of, or otherwise secured
by such Other Assets (whether or not any such entitlement or security interest
is legally perfected or otherwise entitled to priority of distribution or
application under applicable law, including insolvency laws, and whether
asserted against Depositor or any other Person owned by Depositor), including
the payment of post-petition interest on such other obligations and
Exhibit A, Page 4
liabilities. This subordination agreement shall be deemed a subordination
agreement within the meaning of Section 510(a) of the Bankruptcy Code. Each
Certificateholder, by acceptance of a Certificate, further acknowledges and
agrees that no adequate remedy at law exists for a breach of this paragraph and
the terms of this paragraph may be enforced by an action for specific
performance. The provisions of this paragraph shall be for the third party
benefit of those entitled to rely thereon and shall survive the termination of
the Trust Agreement.
The Certificates may not be acquired by or for the account of or with the
assets of (a) an employee benefit plan (as defined in Section 3(3) of ERISA)
that is subject to the provisions of Title 1 of ERISA, (b) a plan described in
Section 4975(e)(1) of the Code or (c) any entity whose underlying assets include
plan assets by reason of a plan's investment in the entity (each, a "Benefit
Plan"). By accepting and holding this Certificate, the Holder hereof shall be
deemed to have represented and warranted that it is not a Benefit Plan and is
not purchasing on behalf of a Benefit Plan.
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of Owner Trustee, by manual signature, this Certificate
shall not entitle the holder hereof to any benefit under the Trust Agreement or
the Sale and Servicing Agreement or be valid for any purpose.
THIS CERTIFICATE 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.
Exhibit A, Page 5
IN WITNESS WHEREOF, Owner Trustee, on behalf of Issuer and not in its
individual capacity, has caused this Certificate to be duly executed.
AMSOUTH AUTO TRUST 2000-1
By: THE CHASE MANHATTAN BANK
not in its individual
capacity, but solely as Owner Trustee
Dated:________________ By:_______________________________________
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Trust
Agreement.
THE CHASE MANHATTAN BANK, as
Owner Trustee
By:_______________________________________________
Authenticating Agent
By:_______________________________________________
Authorized Signatory
Exhibit A, Page 6
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
__________________________________________________________________________
(Please print or type name and address, including postal zip
code, of assignee)
__________________________________________________________________________
the within Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
________________________________________________________ Attorney to
transfer said Certificate on the books of the Certificate Registrar, with full
power of substitution in the premises.
Dated:________________ ______________________________________
______________________________________*
Signature Guaranteed:
______________________________________*
____________________________
-------------------------------
* NOTICE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Certificate in
every particular, without alteration, enlargement or any change whatever.
Such signature must be guaranteed by a member firm of the New York Stock
Exchange or a commercial bank or trust company.
Exhibit A, Page 7
EXHIBIT B
FORM OF TRANSFEROR CERTIFICATE
[Date]
AmSouth Auto Trust 2000-1,
as Issuer
c/o The Chase Manhattan Bank,
as Owner Trustee and
as Certificate Registrar
000 Xxxx 00/xx/ Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with our proposed sale of the 100% Asset Backed Certificates
(the "Certificate") of AmSouth Auto Trust 2000-1 (the "Issuer"), a trust formed
by AmSouth Auto Receivables, LLC (the "Depositor" or "Seller"), we confirm that:
a. The Transferor is the lawful owner of the Certificate with the full
right to transfer the Certificate free from any and all claims and
encumbrances whatsoever.
b. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of the
Certificates, any interest in the Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy
or accept a transfer, pledge or other disposition of the Certificate,
any interest in the Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with
respect to the Certificate, any interest in the Certificate or any
other similar security with any person in any manner, (d) made any
general solicitation with respect to the Certificate, any interest in
the Certificate or any other similar security be means of general
advertising or in any manner, or (e) taken any other action with
respect to the Certificate, any interest in the Certificate or any
other similar security, which (in the case of any of the acts
described in clauses (a) through (e) hereof) would constitute a
distribution under the Securities Act of 1933 (the "Securities Act"),
or would render the disposition of the Certificate a violation of
Section 5 of the Securities Act or any state securities laws, or would
require
Exhibit B, Page 1
registration or qualification of the Certificate pursuant to the
Securities Act or any state securities laws.
c. The Transferor and any person acting on behalf of the Transferor in
this matter reasonably believe that the Transferee is either (a) a
"qualified institutional buyer" (as that term is defined in Rule 144A
("Rule 144A") under the Securities Act) purchasing for its own account
or (b) either (i) an "accredited investor" within the meaning of
paragraph (1), (2), (3) or (7) of Rule 501(a) under the Securities Act
or (ii) an entity in which all the equity owners are "accredited
investors" within the meaning of paragraph (1), (2), (3) or (7) of
Rule 501(a) under the Securities Act, and has such knowledge and
experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Certificate.
d. Unless the Transferee is either (a) an "accredited investor" within
the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities
Act or (b) an entity in which all the equity owners are "accredited
investors" within the meaning of paragraph (1), (2), (3) or (7) of
Rule 501(a) under the Securities Act that is furnishing a Transferee
Certificate in the form of Exhibit B-3 to the Pooling and Servicing
Agreement, the Transferor or a person acting on its behalf has taken
reasonable steps to ensure that the Transferee is aware that the
Transferor is relying on the exemption from the provisions of Section
5 of the Securities Act provided by Rule 144A.
e. The Transferor or a person acting on its behalf has furnished, or
caused to be furnished, to the Transferee all information regarding
(a) the Certificates and distributions thereon, (b) the nature,
performance and servicing of the Mortgage Loans, (c) the Pooling and
Servicing Agreement, and (d) any credit enhancement mechanism
associated with the Certificates, that the Transferee has requested.
Very truly yours,
Print Name of Transferor
------------------------------------
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Exhibit B, Page 2
EXHIBIT C
FORM OF TRANSFEREE CERTIFICATE
[Date]
AmSouth Auto Trust 2000-1,
as Issuer
c/o The Chase Manhattan Bank,
as Owner Trustee and
as Certificate Registrar
000 Xxxx 00/xx/ Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with our proposed purchase of the 100% Asset Backed
Certificates (the "Certificates") of AmSouth Auto Trust 2000-1 (the "Issuer"), a
trust formed by AmSouth Auto Receivables, LLC (the "Depositor" or "Seller"), we
confirm that:
a. We are a "qualified institutional buyer" as defined in Rule 144A
("QIB") and are acquiring the Certificate for its own institutional
account (and not for the account of others) or as a fiduciary or agent
for others (which others also are QIBs);
b. We acknowledge that the Certificates have not been and will not be
registered under the Securities Act or the securities laws of any
jurisdiction;
c. We are familiar with Rule 144A and are aware that the sale is being
made in reliance on Rule 144A and we are not acquiring the
Certificates with a view to, or for resale in connection with, a
distribution that would constitute a public offering within the
meaning of the Securities Act or a violation of the Securities Act,
and that, if in the future we decide to resell, assign, pledge or
otherwise transfer any Certificates, such Certificates may be resold,
assigned, pledged or transferred only (i) to the Depositor or any
Affiliate thereof, (ii) so long as such Certificate is eligible for
resale pursuant to Rule 144A, to a person whom we reasonably believe
after due inquiry is a QIB acting for its own account (and not for the
account of others) or as a fiduciary or agent for others (which others
also are QIBs) to whom notice is given that the resale, pledge,
assignment or transfer is being made in reliance on Rule 144A, (iii)
pursuant to an effective registration
Exhibit C, Page 1
statement under the Securities Act or (iv) in a sale, pledge or other
transfer made in a transaction otherwise exempt from the registration
requirements of the Securities Act, in which case (A) the Owner
Trustee will require that both the prospective transferor and the
prospective transferee certify to the Owner Trustee and the Depositor
in writing the facts surrounding such transfer, which certification
shall be in form and substance satisfactory to the Owner Trustee and
the Depositor and (B) the Owner Trustee will require a written opinion
of counsel (which will not be at the expense of the Depositor or the
Owner Trustee) satisfactory to the Depositor and the Owner Trustee to
the effect that such transfer will not violate the Securities Act, in
each case in accordance with any applicable securities or "Blue Sky"
laws of any state of the United States;
d. No Certificate will be acquired or held by any "employee benefit plan"
subject to ERISA or a "plan" described by Section 4975(e)(1) of the
Internal Revenue Code of 1986, as amended, or by any entity deemed to
hold the assets of any of the foregoing by reason of an employee
benefit plan's or other plan's investment in such entity. Each Person
who acquires any Certificate or interest therein will certify that the
foregoing conditions are satisfied.
e. We are aware that we (or any account for which we are purchasing) may
be required to bear the economic risk of an investment in the
Certificates for an indefinite period, and we (or such account) are
able to bear such risk for an indefinite period;
f. We understand that the Certificates will bear legends substantially as
set forth in Section 3.12 of the Trust Agreement;
g. If we are acquiring any Certificates for the account of one or more
qualified institutional buyers, we represents that we have sole
investment discretion with respect to each such account and that we
have full power to make the foregoing acknowledgments, representations
and agreements on behalf of each such account; and
h. We acknowledge that the Owner Trustee, the Depositor, and their
Affiliates, and others will rely upon the truth and accuracy of the
foregoing acknowledgments, representations and agreements.
Exhibit C, Page 2
You are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By:________________________________
Name:
Title:
Exhibit C, Page 3
