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EXHIBIT 4.2
EXECUTION COPY
PURCHASE AGREEMENT
This PURCHASE AGREEMENT is made as of September 30, 1997, by
and between NATIONSCREDIT COMMERCIAL CORPORATION OF AMERICA, a North Carolina
corporation (the "Seller"), having its chief executive office at 0000
Xxxxxxxxxx Xxxxxx, X.X., Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000 and NATIONSCREDIT
SECURITIZATION CORPORATION, a Delaware corporation (the "Purchaser"), having
its chief executive office at 225 E. Xxxx Xxxxxxxxx Freeway, Irving, Texas
75062- 2731.
WHEREAS, in the regular course of its business the Seller has
purchased the Receivables (as hereinafter defined) and the security interests
securing the same from the Dealer and in turn desires to sell the Receivables
and such security interests to the Purchaser pursuant to this Purchase
Agreement.
WHEREAS, the Seller and the Purchaser wish to set forth the
terms pursuant to which the Receivables are to be sold by the Seller to the
Purchaser, which Receivables will be transferred by the Purchaser, pursuant to
the Pooling and Servicing Agreement (as hereinafter defined) to the
NationsCredit Grantor Trust 1997-2 to be created thereunder, which Trust will
issue certificates representing fractional undivided interests in such
Receivables and the other property of the Trust (the "Certificates").
NOW, THEREFORE, in consideration of the foregoing, other good
and valuable consideration, and the mutual terms and covenants contained
herein, the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Terms not defined in this Purchase Agreement shall have the
meaning set forth in Articles VI and XI of the Pooling and Servicing Agreement.
As used in this Purchase
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Agreement, the following terms shall, unless the context otherwise requires,
have the following meanings (such meanings to be equally applicable to the
singular and plural forms of the terms defined):
"Assignment" shall mean the document of assignment attached to
this Purchase Agreement as Exhibit A.
"Boat" means a new or used boat, boat motor or boat trailer
securing an Obligor's indebtedness under the respective Marine Receivable.
"Capital Contribution" shall mean $1,813,681.98 which will be
contributed to the capital of the Purchaser by the Seller on the Closing Date.
"Closing Date" shall mean October 23, 1997.
"Cutoff Date" shall mean September 30, 1997.
"Marine Receivable" shall mean any marine retail installment
sale contract which shall appear on Exhibit B-1 hereto.
"Pooling and Servicing Agreement" shall mean the Pooling and
Servicing Agreement (including the Standard Terms and Conditions of Agreement
attached thereto) dated as of September 30, 1997 by and among NationsCredit
Commercial Corporation of America as Servicer, the Purchaser as Depositor, and
Bankers Trust Company as Trustee and Collateral Agent.
"Property" shall mean collectively, the Receivables, and all
payments received thereunder after the Cutoff Date; all right, title and
interest of the Seller in the security interest in the Boats granted by
Obligors pursuant to the Marine Receivables and in the RVs granted by Obligors
pursuant to the RV Receivables; all right, title and interest of the Seller in
any proceeds from claims on any physical damage, credit life or disability
insurance policies covering Boats and RVs or Obligors; all right, title and
interest of the Seller in any proceeds from recourse to Dealers on Receivables;
and any proceeds of all of the foregoing.
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"Prospectus" shall mean the Prospectus, dated October 16,
1997, relating to the Certificates.
"Purchase Agreement" shall mean this Purchase Agreement and
all amendments hereof and supplements hereto.
"Purchaser" shall mean NationsCredit Securitization
Corporation, a Delaware corporation, its successors and assigns.
"Receivable" shall mean the Marine Receivables and the RV
Receivables.
"Receivables Purchase Price" shall mean $110,021,865.96.
"Repurchase Event" shall have the meaning specified in
Section 6.2 hereof.
"RV" means a new or used recreational vehicle securing an
Obligor's indebtedness under the respective RV Receivable.
"RV Receivable" shall mean any recreational vehicle
installment sale contract which shall appear on Exhibit B-2 hereto.
"Schedule of Receivables" shall mean the list of Marine
Receivables and RV Receivables annexed hereto as Exhibits B-1 and B-2,
respectively.
"Seller" shall mean NationsCredit Commercial Corporation of
America, a North Carolina corporation, its successors and assigns.
"Trust" shall mean the NationsCredit Grantor Trust 1997-2.
"UCC" shall mean the Uniform Commercial Code, as in effect
from time to time in the relevant jurisdictions.
"Underwriting Agreement" shall mean the Underwriting
Agreement, dated October 16, 1997 between NationsBanc Xxxxxxxxxx Securities,
Inc. as representative of the several underwriters and the Purchaser.
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ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
2.1 Purchase and Sale of Receivables.
On the Closing Date, subject to the terms and conditions of
this Purchase Agreement, the Seller agrees to sell to the Purchaser, and the
Purchaser agrees to purchase from the Seller, the Property.
(a) Transfer of Receivables. On the Closing Date
and simultaneously with the transactions pursuant to the Pooling and Servicing
Agreement, the Seller shall sell, transfer, assign and otherwise convey to the
Purchaser, without recourse (except as otherwise agreed hereunder or under the
Pooling and Servicing Agreement), all of its right, title and interest in and
to the Property.
The Seller intends that the assignment and transfer herein
contemplated constitute a sale of the Receivables, conveying good title thereto
free and clear of any liens and encumbrances, from the Seller to the Purchaser
and that such property not be part of the Seller's estate or property of the
Seller in the event of any insolvency by the Seller, and the Purchaser
acquiesces in such characterization. In the event that such conveyance is
deemed to be, or to be made as security for, a loan, the Seller hereby grants
to the Purchaser a first priority perfected security interest in all of the
Seller's right, title and interest in and to the Receivables, and this Purchase
Agreement shall constitute a security agreement under applicable law.
(b) Receivables Purchase Price. In consideration
for the Property, the Purchaser shall, on the Closing Date, pay to the Seller
the Receivables Purchase Price. The amount paid to the Seller shall be in
immediately available funds but shall be reduced by the Capital Contribution.
2.2 The Closing. The sale and purchase of the
Receivables shall take place at a closing (the "Closing") at the offices of
Stroock & Stroock & Xxxxx LLP, 000 Xxxxxx Xxxx,
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Xxx Xxxx, Xxx Xxxx 00000 on the Closing Date, simultaneously with the closing
under the Pooling and Servicing Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Warranties of The Purchaser. The Purchaser hereby
represents and warrants to the Seller as of the date hereof and as of the
Closing Date:
(a) Organization and Good Standing. The Purchaser
shall have been duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with power and authority to
own its properties and to conduct its business as such properties shall be
currently owned and such business is presently conducted, and has at all
relevant times, and shall have, power, authority and legal right to acquire,
own and sell the Receivables.
(b) Due Qualification. The Purchaser shall be
duly qualified to do business as a foreign corporation in good standing, and
shall have 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.
(c) Power and Authority. The Purchaser shall
have the power and authority to execute and deliver this Purchase Agreement and
to carry out its terms; the Purchaser has full power and authority to sell and
assign the Property to be sold and assigned to the Trustee as part of the Trust
and shall have authorized such sale and assignment to the Trustee by all
necessary corporate action and the execution, delivery and performance of this
Purchase Agreement shall have been duly authorized by the Purchaser by all
necessary corporate action.
(d) Valid Sale; Binding Obligations. This
Purchase Agreement shall evidence (A) a valid sale, transfer and assignment of
the Receivables, enforceable against creditors of and purchasers from the
Purchaser, and (B) a legal, valid and binding obligation of the Purchaser
enforceable in accordance with its terms, subject to applicable bankruptcy,
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insolvency, reorganization, fraudulent conveyance and similar laws relating to
creditors' rights generally and subject to general principles of equity.
(e) No Violation. The consummation of the
transactions contemplated by this Purchase Agreement and the fulfillment of the
terms hereof shall not conflict with, result in any breach of any of the terms
and provisions of, nor constitute (with or without notice or lapse of time or
both) a default under, the articles of incorporation or by-laws of the
Purchaser, or any indenture, agreement or other instrument to which the
Purchaser is a party or by which it shall be 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 the Pooling and
Servicing Agreement), nor violate any law, any order, rule or regulation
applicable to the Purchaser of any court or of any Federal or State regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over the Purchaser or its properties.
(f) No Proceedings. There are no proceedings or
investigations pending, or threatened, before any court, regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Purchaser or its properties: (A) asserting the invalidity of this
Purchase Agreement; (B) seeking to prevent the consummation of any of the
transactions contemplated by this Purchase Agreement; or (C) seeking any
determination or ruling that might materially and adversely affect the
performance by the Purchaser of its obligations under, or the validity or
enforceability of, this Purchase Agreement.
(g) All Consents Required. All approvals,
authorizations, consents, orders or other actions of any Person or of any
governmental body or official required in connection with the execution and
delivery by the Purchaser of this Purchase Agreement, the performance by the
Purchaser of the transactions contemplated by this Purchase Agreement, and the
fulfillment by the Purchaser of the terms hereof, have been obtained.
3.2 Representations and Warranties of the Seller.
(a) The Seller hereto represents and warrants to the Purchaser as of the date
hereof and as of the Closing Date:
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(i) Organization and Good Standing. The
Seller has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of North
Carolina, 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, and has at all relevant times, and
shall have, power, authority and legal right to acquire, own and sell
the Receivables. The Seller's principal place of business and chief
executive office as of the Closing Date is in Georgia.
(ii) Due Qualification. The Seller is duly
qualified to do business as a foreign corporation in good standing,
and has obtained all necessary licenses and approvals, in all
jurisdictions in which the ownership or lease of property or the
conduct of its business requires such qualifications.
(iii) Power and Authority. The Seller has
the power and authority to execute and deliver this Purchase Agreement
and to carry out its terms; the Seller has full power and authority to
sell and assign the Property to the Purchaser and shall have duly
authorized such sale and assignment to the Purchaser by all necessary
corporate action and the execution, delivery, and performance of this
Purchase Agreement has been duly authorized by the Seller by all
necessary corporate action.
(iv) Valid Sale; Binding Obligations. The
sale of the Receivables by the Seller to the Purchaser constitutes a
valid sale, transfer and assignment of the Receivables, enforceable
against creditors of and purchasers from the Seller, and this Purchase
Agreement shall constitute a legal, valid and binding obligation of
the Seller enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance and similar laws relating to creditors' rights generally
and subject to general principles of equity.
(v) No violation. The consummation of the
transactions contemplated by this Purchase Agreement and the
fulfillment of the terms hereof does not and will not conflict with,
result in any breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time or both) a default
under, the articles of
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incorporation or by-laws of the Seller, or any indenture, agreement,
or other instrument to which the Seller is a party or by which it
shall be 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 the Pooling and
Servicing Agreement); nor violate any law or any order, rule, or
regulation applicable to the Seller of any court or of any Federal or
state regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over the Seller or its properties.
(vi) No Proceedings. There are no
proceedings or investigations pending or threatened, before any court,
regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over the Seller or its properties:
(A) asserting the invalidity of this Purchase Agreement; (B) seeking
to prevent the consummation of any of the transactions contemplated by
this Purchase Agreement, or (C) seeking any determination or ruling
that might materially and adversely affect the performance by the
Seller of its obligations under, or the validity or enforceability of
this Purchase Agreement.
(vii) All Consents Required. All approvals,
authorizations, consents, orders or other actions of any Person or of
any governmental body or official required in connection with the
execution and delivery by the Seller of this Purchase Agreement, the
performance by the Seller of the transactions contemplated by this
Purchase Agreement, and the fulfillment by the Seller of the terms
hereof, have been obtained;
(b) The Seller makes the following
representations and warranties as to the Receivables on which the Purchaser
relies in accepting the Receivables. Such representations and warranties speak
as of the Closing Date, but shall survive the sale, transfer, and assignment of
the Receivables to the Purchaser and the subsequent assignment and transfer
pursuant to the Pooling and Servicing Agreement:
(i) Characteristics of Marine Receivables.
Each Marine Receivable (a) shall have been originated in the United
States by a Dealer for the retail
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sale of a Boat in the ordinary course of such Dealer's business, shall
have been fully and properly executed by the parties thereto, shall be
denominated in U.S. dollars, (b) shall have created or shall create a
valid, subsisting and enforceable first priority perfected security
interest in favor of the Seller in the related Boat (other than in the
case of boat motors subject to certificate of title statutes that
provide for perfection of the security interest in such boat motors by
the filing of a UCC-1 financing statement), which security interest
shall be validly assignable to the Purchaser, (c) shall contain
customary and enforceable provisions such that the rights and remedies
of the holder thereof shall be adequate for realization against the
collateral of the benefits of the security, (d) shall provide for
level monthly payments (provided that the payment in the first or last
month in the life of the Marine Receivable may be minimally different
from the level payment) that fully amortize the Amount Financed by
maturity and yield interest at the Annual Percentage Rate, and (e)
shall provide for, in the event that such contract is prepaid, a
prepayment that fully pays the Principal Balance and includes accrued
but unpaid interest due pursuant to the terms of the related contract
through the date of the prepayment in an amount at least equal to the
Annual Percentage Rate.
(ii) Characteristics of RV Receivables. Each
RV Receivable (a) shall have been originated in the United States by a
Dealer for the retail sale of a RV in the ordinary course of such
Dealer's business, shall have been fully and properly executed by the
parties thereto, shall be denominated in U.S. dollars, (b) shall have
created or shall create a valid, subsisting and enforceable first
priority perfected security interest in favor of the Seller in the
related RV, which security interest shall be validly assignable to the
Purchaser, (c) shall contain customary and enforceable provisions such
that the rights and remedies of the holder thereof shall be adequate
for realization against the collateral of the benefits of the
security, (d) shall provide for level monthly payments (provided that
the payment in the first or last month in the life of the RV
Receivable may be minimally different from the level payment) that
fully amortize the Amount Financed by maturity and yield interest at
the Annual Percentage Rate, and (e) shall provide for, in the event
that such contract is prepaid, a prepayment that fully pays the
Principal Balance and
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includes accrued but unpaid interest due pursuant to the terms of the
related contract through the date of the prepayment in an amount at
least equal to the Annual Percentage Rate.
(iii) Schedule of Receivables. The
information set forth in Exhibits B-1 and B-2 to this Purchase
Agreement shall be true and correct in all material respects as of the
close of business on the Cutoff Date, and no selection procedures
believed to be adverse to the Purchaser shall have been utilized in
selecting the Receivables.
(iv) Compliance with Law. Each Marine
Receivable and the sale of the related Boat and each RV Receivable and
the sale of the related RV shall have complied at the time it was
originated or made, and at the Closing Date shall comply in all
material respects with all requirements of applicable Federal, State,
and local laws, and regulations thereunder, including, without
limitation, usury laws, the Federal Truth-in-Lending Act, the Equal
Credit Opportunity Act, the Federal Trade Commission Act, the Fair
Credit Billing Act, the Fair Credit Reporting Act, the Fair Debt
Collection Practices Act, the Xxxxxxxx-Xxxx Warranty Act, the Federal
Trade Commission Credit Practices Rule, State unfair and deceptive
trade practice laws and the State adaptations of the National Consumer
Act and of the Uniform Consumer Credit Code, and any other applicable
consumer credit laws and equal credit opportunity and disclosure laws.
(v) Binding Obligation. Each Receivable
shall represent the genuine, legal, valid, and binding payment
obligation in writing of the Obligor, enforceable by the holder
thereof in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance and
similar laws relating to creditors' rights generally and subject to
general principles of equity.
(vi) No Government Obligor. None of the
Receivables shall be due from the United States of America or any
State or local government or from any agency, department, or
instrumentality of the United States of America, any State or local
government.
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(vii) Receivables in Force. No Receivable
shall have been satisfied, subordinated or rescinded, nor shall any
Boat, in the case of Marine Receivables, or any RV in the case of RV
Receivables have been released from the security interest granted by
the related Marine Receivable or RV Receivable, as applicable, in
whole or in part.
(viii) No Waiver. No provision of a
Receivable shall have been waived.
(ix) No Defenses. The Receivables are free
and clear of all security interests, liens, charges, and encumbrances
and to the best knowledge of the Seller, no right of rescission,
setoff, counterclaim, or defense shall have been asserted or
threatened with respect to any Receivable.
(x) No Liens. No liens or claims shall have
been filed for work, labor, or materials relating to a Boat or RV that
shall be liens prior to, or equal or coordinate with, the security
interest in the Boat in the case of Marine Receivables or RV in the
case of RV Receivables granted by the related Receivable.
(xi) No Default. Except for payment
defaults continuing for a period of less than 60 days as of the Cutoff
Date, no default, breach, violation, or event permitting acceleration
under the terms of any Receivable shall have occurred and the Seller
has not waived and shall not waive any of the foregoing.
(xii) Insurance. Each Obligor under the
Marine Receivables has obtained physical damage insurance covering the
related Boat and each Obligor under the RV Receivables, has obtained
physical damage insurance covering the related RV, and in each case
such Obligors are required under the terms of the related Receivable
to maintain such insurance.
(xiii) Title. It is the intention of the
Seller that the sale and assignment herein contemplated constitute a
sale of the Receivables from the Seller to the Purchaser and that the
beneficial interest in and title to the Receivables not be part of the
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debtor's estate in the event of the filing of a bankruptcy petition by
or against the Seller under any bankruptcy law. No Receivable has been
sold, transferred, assigned, or pledged by the Seller to any Person
other than the Purchaser. Immediately prior to the sale and
assignment herein contemplated, the Seller had good and marketable
title to each Receivable free and clear of all Liens, encumbrances,
security interests and rights of others and, immediately upon the sale
and assignment contemplated hereby, the Purchaser shall have good and
marketable title to each Receivable, free and clear of all Liens,
encumbrances, security interests, and rights of others and the sale
and assignment has been perfected under the UCC.
(xiv) Lawful Assignment. No Receivable
shall have been originated in, or shall be subject to the laws of, any
jurisdiction under which the sale, transfer, and assignment of such
Receivable under the Agreement shall be unlawful, void, or voidable.
(xv) Security Interest. Upon the
Receivables being conveyed to the Trust pursuant to Section 2.1 of the
Agreement, the Trust shall have a perfected security interest under
the UCC in the Receivables.
(xvi) One Original. There shall be in
existence one, and only one, original executed copy of each
Receivable.
(xvii) UCC Characterization. Each
Receivable constitutes "chattel paper" under the UCC.
(xviii) Maximum Balance. No Marine
Receivable has a Principal Balance of greater than $50,000.
(xix) Original Maturity of Receivables.
Each Receivable shall have an original maturity of not more than 180
months.
(xx) Remaining Maturity of Receivables.
As of the Cutoff Date, each Receivable shall have a remaining maturity
of not more than 180 months.
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(xxi) Annual Percentage Rate. Each Marine
Receivable shall have a fixed Annual Percentage Rate of not less than
8.0002% and not greater than 19.0035%. Each RV Receivable shall have
a fixed Annual Percentage Rate of not less than 8.0000% and not
greater than 20.5001%.
(xxii) Ship Mortgage Act. No Boat securing
any Marine Receivable meets the requirements for documentation under
the Ship Mortgage Act.
(xxiii) No Default. Except for payment
defaults continuing for a period of less than 60 days as of the Cutoff
Date, no default, breach, violation or event permitting acceleration
under the terms of any Receivable shall have occurred and neither
NationsCredit Commercial nor the Purchaser shall have waived any of
the foregoing.
(xxiv) Location of Receivable Files. The
Receivable Files shall be kept at the offices of NationsCredit
Commercial at 0000 Xxxxxxx Xxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx 00000 and
at 0000 Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxx 00000.
(xxv) No Repossessions. As of the Cutoff
Date, no boat securing any Receivable is in repossession status.
(xxvi) No Bankruptcies. As of the Cutoff
Date, no Obligor on a Receivable was noted in the Receivable File as
the subject of any bankruptcy proceeding.
(xxvii) Delinquencies. As of the Cutoff
Date, no Receivable shall have a payment that is 60 or more days
delinquent.
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ARTICLE IV
CONDITIONS
4.1 Conditions to Obligation of the Purchaser. The
obligation of the Purchaser to purchase the Receivables is subject to the
satisfaction of the following conditions:
(a) Computer Files Marked. The Seller shall
have, at its own expense, on or prior to the Closing Date, indicated in its
computer files that the Receivables have been sold to the Purchaser pursuant to
this Purchase Agreement and delivered to the Purchaser the Schedule of
Receivables certified by the Chairman, the President, any Vice President, the
Treasurer or the Assistant Treasurer to be true, correct and complete.
(b) Documents to be delivered by the Seller at
the Closing.
(i) The Assignment. At the Closing, the
Seller will execute and deliver to the Purchaser the Assignment. The
Assignment shall be substantially in the form of Exhibit A hereto.
(ii) Evidence of UCC Filing. On or prior
to the Closing Date, the Seller shall record and file, at its own
expense, a UCC-1 financing statement in each jurisdiction in which
required by applicable law, executed by the Seller, as seller or
debtor, and naming the Purchaser, as purchaser or secured party,
naming the Receivables and the other Property as collateral, meeting
the requirements of the laws of each such jurisdiction and in such
manner as is necessary to perfect the sale, transfer, assignment and
conveyance of the Receivables and the Property to the Purchaser. The
Seller shall deliver a file-stamped copy, or other evidence
satisfactory to the Purchaser of such filing, to the Purchaser on or
prior to the Closing Date.
(iii) Other Documents. Such other documents
as the Purchaser may reasonably request.
(c) Other Transactions. The transactions
contemplated by the Pooling and Servicing Agreement shall be consummated on the
Closing Date.
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4.2 Conditions to Obligation of the Seller. The
obligation of the Seller to sell the Receivables to the Purchaser is subject to
the satisfaction of the following conditions:
(a) Representations and Warranties True. The
representations and warranties of the Purchaser hereunder shall be true and
correct on the Closing Date with the same effect as if then made, and the
Purchaser shall have performed all obligations to be performed by it hereunder
on or prior to the Closing Date.
(b) Receivables Purchase Price. At the Closing
Date, the Purchaser will deliver to the Seller the Receivables Purchase Price
as provided in Section 2.1(b) hereof.
ARTICLE V
COVENANTS OF THE SELLER
The Seller agrees with the Purchaser as follows, provided,
however, that to the extent that any provision of this ARTICLE V conflicts with
any provision of the Pooling and Servicing Agreement, the Pooling and Servicing
Agreement shall govern:
5.1 Protection of Right, Title and Interest.
(a) Filings. The Seller shall cause all
financing statements and continuation statements and any other necessary
documents covering the right, title and interest of the Purchaser in and to the
Receivables and the other Property to be promptly filed, and at all times to be
kept recorded, registered and filed, all in such manner and in such places as
may be required by law fully to preserve and protect the right, title and
interest of the Purchaser hereunder to the Receivables and the other Property.
The Seller shall deliver to the Purchaser file-stamped copies of, or filing
receipts for any document recorded, registered or filed as provided above, as
soon as available following such recordation, registration or filing. The
Purchaser shall cooperate fully with the Seller in connection with the
obligations set forth above and will execute any and all documents reasonably
requested to fulfill the intent of this Section 5.01(a).
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(b) Name Change. Within fifteen days after the
Seller makes any change in its name, identity, principal place of business,
chief executive office or corporate structure which would make any financing
statement or continuation statement filed in accordance with paragraph (a)
above seriously misleading within the applicable provisions of the UCC or any
title statute, the Seller shall give the Purchaser notice of any such change
and no later than five days after the effective date thereof shall file such
financing statements or amendments as may be necessary to continue the
perfection of the Purchaser's security interest in the Receivables and the
other Property.
(c) Other Actions. The Seller shall cause such
additional actions to be taken as may be required by law to fully preserve and
protect the right, title and interest of the Purchaser hereunder to the
Property.
5.2 Other Liens or Interests. Except for the conveyances
hereunder and pursuant to the Pooling and Servicing Agreement, the Seller will
not sell, pledge, assign or transfer to any other Person, or grant, create,
incur, assume or suffer to exist any Lien on the Property or any interest
therein, and the Seller shall defend the right, title, and interest of the
Purchaser in, to and under the Property (other than the Purchased Receivables)
against all claims of third parties claiming through or under the Seller;
provided, however, that the Seller's obligations under this Section 5.2 shall
terminate upon the termination of the Trust pursuant to the Pooling and
Servicing Agreement.
5.3 Chief Executive Office. During the term of the
Receivables, the Seller will maintain its chief executive office in the United
States, except for Colorado, Kansas, Louisiana, New Mexico, Oklahoma, Utah,
Vermont or Wyoming. The Seller shall give the Purchaser at least 30 days prior
written notice of any relocation of its chief executive office, or if as a
result of any change, the applicable provisions of the UCC would require the
filing of any amendment of any previously filed financing or continuation
statement or of any new financing statement, and shall promptly file any such
amendment or new financing statement.
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5.4 Costs and Expenses. The Seller agrees to pay all
costs and disbursements in connection with the perfection, as against all third
parties, of the Purchaser's right, title and interest in and to the
Receivables.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1 Obligations of Seller. The obligations of the Seller
under this Purchase Agreement shall not be affected by reason of any
invalidity, illegality or irregularity of any Receivable.
6.2 Repurchase Events. The Seller hereby covenants and
agrees with the Purchaser for the benefit of the Purchaser, the Trustee, the
Certificateholders and the Surety Bond Issuer, that a breach of any of the
Seller's representations and warranties contained in Section 3.2(b) hereof,
which as a result of such breach would materially and adversely affect the
interests of the Purchaser, the Certificateholders, the Surety Bond Issuer,
unless such breach shall have been cured by the second Record Date following
the discovery thereof (or at the Seller's option the first Record Date
following discovery), shall constitute an event obligating the Seller to
repurchase Receivables hereunder (a "Repurchase Event"), at the Purchase Amount
from the Purchaser or from the Trust. The Purchase Amount shall be paid in the
manner specified in Section 14.4(a) of the Pooling and Servicing Agreement on
the Deposit Date. The repurchase obligation of the Seller shall constitute the
sole remedy to the Certificateholders, the Trustee, the Surety Bond Issuer, or
the Purchaser against the Seller with respect to any Repurchase Event.
6.3 Seller's Assignment of Purchased Receivables. With
respect to all Receivables repurchased by the Seller pursuant to this Purchase
Agreement, the Purchaser shall assign, without recourse, representation or
warranty, to the Seller all the Purchaser's right, title and interest in and to
such Receivables, and all Property and documents relating thereto.
6.4 Trust. The Seller acknowledges that the Purchaser
will, pursuant to the Pooling and Servicing Agreement, sell the Property to the
Trust on the Closing Date and assign its rights under this Purchase Agreement
to the Trustee for the benefit of the Certificateholders and the Surety Bond
Issuer and that the representations and warranties contained in this Purchase
Agreement and the rights of the Purchaser under Sections 6.2 and 6.3 hereof are
intended to benefit such Trust, the Certificateholder
18
and the Surety Bond Issuer. The Seller hereby consents to such sale and
assignment and the right of the Trustee to enforce directly the obligations of
the Seller hereunder.
6.5 Amendment. This Purchase Agreement may be amended
from time to time by a written amendment duly executed and delivered by the
Seller and the Purchaser; provided, however, that any such amendment that
materially adversely affects the rights of the Certificateholders or the Surety
Bond Issuer under the Pooling and Servicing Agreement must be consented to by
the Surety Bond Issuer and the Holders of Certificates evidencing not less than
51% of the Pool Balance.
6.6 Waivers. No failure or delay on the part of the
Purchaser in exercising any power, right or remedy under this Purchase
Agreement or the Assignment shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power, right or remedy preclude any
other or further exercise thereof or the exercise of any other power, right or
remedy.
6.7 Notices. All communications and notices pursuant
hereto to either party shall be in writing and addressed or delivered to it at
its address shown in the opening paragraph of this Purchase Agreement or at
such other address as may be designated by it by notice to the other party and,
if mailed, shall be deemed given when mailed.
6.8 Costs and Expenses. The Seller will pay all expenses
incident to the performance of its obligations under this Purchase Agreement
and the Seller agrees to pay all reasonable out-of-pocket costs and expenses of
the Purchaser, including reasonable fees and expenses of counsel, in connection
with the perfection as against third parties of the Purchaser's right, title
and interest in and to the Receivables and the enforcement of any obligation of
the Seller hereunder.
6.9 Representations to the Seller. The respective
agreements, representations, warranties and other statements by the Seller and
the Purchaser set forth in or made pursuant to
19
this Purchase Agreement shall remain in full force and effect and will survive
the Closing under Section 2.02 hereof.
6.10 Confidential Information. The Purchaser agrees that it
will neither use nor disclose to any person the names and addresses of the
Obligors, except in connection with the enforcement of the Purchaser's rights
hereunder, under the Receivables, under any Pooling and Servicing Agreement or
as required by law.
6.11 Headings and Cross-References. The various headings in
this Purchase Agreement are included for convenience only and shall not affect
the meaning or interpretation of any provision of this Purchase Agreement.
References in this Purchase Agreement to Section names or numbers are to such
Sections of this Purchase Agreement.
6.12 Governing Law. THIS PURCHASE AGREEMENT AND THE
ASSIGNMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK.
6.13 Counterparts. This Purchase Agreement may be executed
in two or more counterparts and by different parties on separate counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
6.14 No Petition. The Seller will not institute against, or
join any other person in instituting against, the Purchaser, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding, or other
proceeding under any federal or state bankruptcy or similar law, until April
16, 2015.
20
IN WITNESS WHEREOF, the parties hereby have caused
this Purchase Agreement to be executed by their respective officers thereunto
duly authorized as of the date and year first above written.
NATIONSCREDIT SECURITIZATION CORPORATION
By:
----------------------------------------
Name:
Title:
NATIONSCREDIT COMMERCIAL CORPORATION OF
AMERICA
By:
----------------------------------------
Name:
Title:
21
Exhibit A
ASSIGNMENT
For value received, in accordance with the Purchase Agreement
dated as of September 30, 1997 (the "Purchase Agreement"), between the
undersigned and NationsCredit Securitization Corporation (the "Purchaser"), the
undersigned does hereby sell, assign, transfer and otherwise convey unto the
Purchaser, without recourse (except as provided in the Purchase Agreement) all
right, title and interest of the undersigned in and to: (i) the Receivables
and all payments received thereunder after the Cutoff Date; (ii) the security
interest in the Boats granted by Obligors pursuant to the Marine Receivables
and in the RVs granted by Obligors pursuant to the RV Receivables; (iii) any
proceeds from claims on any physical damage, credit life or disability
insurance policies covering Boats and RVs or Obligors; (iv) any proceeds from
recourse to Dealers on Receivables; and (v) any proceeds of all of the
foregoing. The foregoing sale does not constitute and is not intended to
result in any assumption by the Purchaser of any obligation of the undersigned
to the Obligors, insurers or any other person in connection with the
Receivables, Receivable Files, any insurance policies or any agreement or
instrument relating to any of them.
This Assignment is made pursuant to and upon the
representations, warranties, and agreements on the part of the undersigned
contained in the Purchase Agreement and is to be governed by the Purchase
Agreement.
Capitalized terms used herein and not otherwise defined shall
have the meaning assigned to them in the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment
to be duly executed as of September 30, 1997.
NATIONSCREDIT COMMERCIAL
CORPORATION OF AMERICA
By:
--------------------------
Name:
Title:
22
Exhibit B-1
Schedule of Marine Receivables
delivered to Trustee
-2-
23
Exhibit B-2
Schedule of RV Receivables
delivered to Trustee
-3-
24
Schedule A
Location of Receivable Files
1. NationsCredit Commercial Corporation
0000 Xxxxxxx Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
2. NationsCredit Commercial Corporation
0000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000
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