1
EXHIBIT 1.1
NATIONSCREDIT SECURITIZATION CORPORATION
DEPOSITOR
NATIONSCREDIT GRANTOR TRUST 1997-2
UNDERWRITING AGREEMENT
OCTOBER 16, 1997
NationsBanc Xxxxxxxxxx Securities, Inc.,
as Representative of the several underwriters
NationsBank Corporate Center
000 Xxxxx Xxxxx Xxxxxx, XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
NationsCredit Securitization Corporation, a Delaware corporation (the
"Company"), proposes to form a trust entitled the NationsCredit Grantor Trust
1997-2 (the "Trust") pursuant to the terms of a proposed Pooling and Servicing
Agreement, including the Standard Terms and Conditions of Agreement, to be
dated as of September 30, 1997, among the Company, as Depositor, NationsCredit
Commercial Corporation of America, as Servicer (the "Servicer" or
"NationsCredit Commercial"), and Bankers Trust Company, as Trustee and
Collateral Agent (the "Pooling and Servicing Agreement"), pursuant to which
certain 6.35% Marine Receivable-Backed Certificates (the "Marine Certificates")
and certain 6.25% RV Receivable-Backed Certificates (the "RV Certificates" and
together with the Marine Certificates, the "Certificates") will be issued.
Each Certificate will evidence a fractional, undivided percentage interest in
the Trust. The property of the Trust includes a pool of marine retail
installment sale contracts secured by new and used boats, boat motors and boat
trailers (the "Marine Receivables"), recreational vehicle retail installment
sale contracts secured by new and used recreational vehicles (the "RV
Receivables" and together with the Marine Receivables, the "Receivables"),
certain monies received under the Simple Interest Receivables and certain
monies due under the Precomputed Receivables, in each case, on or after
September 30, 1997, security interests in the boats and marine equipment
financed by the Marine Contract Group, security interests in the
2
recreational vehicles financed by the RV Contract Group, an irrevocable surety
bond, guaranteeing payments of interest and principal on the Certificates (the
"Surety Bond"), issued by Capital Markets Assurance Corporation (the "Surety
Bond Issuer"), such amounts as from time to time may be held in one or more
trust accounts which will be established and maintained by the Servicer
pursuant to the Pooling and Servicing Agreement, the rights of the Company
under that certain Purchase Agreement, dated as of September 30, 1997, between
the Company and NationsCredit Commercial, the rights of NationsCredit Marine
Funding Corporation ("NCMF") to cause NationsCredit Commercial to repurchase
the NCMF Receivables upon the breach of certain representations and warranties,
the proceeds from any recourse rights of NCMF or the Company against any seller
of new and used boats, boat motors and boat trailers financed by the Marine
Receivables pursuant to any agreement with a Dealer, the right to proceeds from
claims on physical damage, credit life and disability insurance policies
relating to the Receivables, and any property that shall have secured a
Receivable and that shall have been acquired by the Trustee. To the extent not
defined herein, capitalized terms used herein shall have the meanings specified
in the Pooling and Servicing Agreement.
The Company proposes to sell to the underwriters identified on
Schedule I hereto (the "Underwriters") for whom you are acting as
representative (the "Representative") the principal amount of the Certificates
identified in Schedule I hereto.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter that:
(a) The Certificates are eligible for registration on
Form S-3 under the Securities Act of 1933, as amended (the "Act"), and
the Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on such form, registration
number 333-33441, under the Act, which has become effective, for the
registration under the Act of the Certificates. The Company proposes
to file with the Commission pursuant to Rule 424 under the Act a final
prospectus relating to the Certificates and the plan of distribution
thereof and has previously advised the Representative of all further
information (financial and other) with respect to the Company to be
set forth therein. Such registration statement, including the
exhibits thereto, as amended to the date of this agreement, is
hereinafter called the "Registration Statement;" such prospectus in
the form in which it appears in the Registration Statement is
hereinafter called the "Preliminary Prospectus;" and such final form
of prospectus, in the form in which it shall be filed with the
Commission pursuant to Rule 424 under the Act, is hereinafter called
the "Final Prospectus."
(b) As of the date hereof, when the Final Prospectus is
first filed pursuant to Rule 424 under the Act, when, prior to the
Closing Date (as hereinafter defined in Section 3), any amendment to
the Registration Statement becomes effective (including the filing of
any document incorporated by reference in the Registration Statement),
when any supplement to the Final Prospectus is filed with the
Commission and at the Closing Date, (i) the Registration Statement, as
amended as of any such time, and the Final Prospectus, as amended or
supplemented as of any such time, will comply in all material respects
-2-
3
with the applicable requirements of the Act and the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the
respective rules thereunder, (ii) the Registration Statement, as
amended as of any such time, will not contain any untrue statement of
a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein
not misleading, and (iii) the Final Prospectus as amended or
supplemented as of any such time, will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes
no representations or warranties as to the information contained in or
omitted from the Registration Statement or the Final Prospectus or any
amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by or
on behalf of any information furnished in writing to the Company by or
on behalf of any Underwriter through the Representative specifically
for use in connection with the preparation of the Registration
Statement and the Final Prospectus.
(c) The Company has been duly incorporated and is validly
existing as a corporation under the laws of the State of Delaware and
has corporate and other power and authority to own its properties and
conduct its business, as now conducted by it, and to enter into and
perform its obligations under this Agreement and each of the Purchase
Agreement, the Reimbursement Agreement and the Pooling and Servicing
Agreement.
(d) The Company is not aware of (i) any request by the
Commission for any further amendment of the Registration Statement or
for any additional information or (ii) the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement.
(e) (i) This Agreement and each of the Purchase
Agreement, the Reimbursement Agreement and the Pooling and Servicing
Agreement have been duly authorized by the Company, and this Agreement
and each of the Purchase Agreement, the Reimbursement Agreement and
the Pooling and Servicing Agreement have been duly executed and
delivered by the Company, and each of this Agreement, the Purchase
Agreement, the Reimbursement Agreement and the Pooling and Servicing
Agreement, when executed and delivered by the Company, does or will,
as the case may be, constitute a legal, valid and binding agreement of
the Company, enforceable against the Company in accordance with its
terms, subject, as to the enforcement of remedies, to applicable
bankruptcy, insolvency, reorganization, moratorium, receivership and
similar laws affecting creditors' rights generally and to general
principles of equity (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law); and (ii)
the Certificates have been duly authorized by the Company, and when
duly executed by the Trustee on behalf of the Trust, authenticated by
the Trustee and delivered in accordance with the Pooling and Servicing
Agreement and delivered and paid for as provided herein, will be
validly issued and outstanding and entitled to the benefits and
security afforded by the Pooling and Servicing Agreement.
-3-
4
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties set forth herein, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, the principal amount of the Marine
Certificates and RV Certificates set forth opposite such Underwriter's name in
Schedule I hereto at the purchase price of 99.700% of the principal amount of
such Marine Certificates and at the purchase price of 99.725% of the principal
amount of such RV Certificates, plus, in each case, interest calculated from
and including October 16, 1997 through and including the date prior to the
Closing Date.
3. Delivery and Payment. Delivery of and payment for the
Certificates shall be made at the offices of Stroock & Stroock & Xxxxx LLP, 000
Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m. New York time on October
23, 1997 or such other place as shall be agreed by the Company and the
Underwriters, and which date and time may be postponed by agreement between the
Representative and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Certificates being herein called the
"Closing Date"). Delivery of the Certificates shall be made to the
Representative for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representative of the purchase
price thereof by one or more wires of immediately available funds to an account
designated by the Company. Delivery of the Certificates shall be made through
the facilities of The Depository Trust Company.
4. Representations, Warranties and Covenants of the Underwriters.
The Underwriters agree with the Company that:
(a) Each Underwriter represents and warrants to the
Company that it will not, in connection with the offering and sale of
the Certificates, use (i) any "Computational Materials" within the
meaning of the no-action letter, dated May 20, 1994, issued by the
Division of Corporation Finance of the Commission to Xxxxxx, Xxxxxxx
Acceptance Corporation I, Xxxxxx, Peabody & Co. Incorporated, and
Xxxxxx Structured Asset Corporation and the no-action letter, dated
May 27, 1994, issued by the Division of Corporation Finance of the
Commission to the Public Securities Association or (ii) any "ABS Term
Sheets" within the meaning of the no-action letter, dated February 17,
1995, issued by the Division of Corporation Finance of the Commission
to the Public Securities Association; and
(b) None of the Underwriters will institute against, or
join any other Person in instituting against, the Company any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding, or other proceeding under any federal or state bankruptcy
or similar law, until August 16, 2014.
5. Agreements. The Company agrees with the several Underwriters
that:
(a) Prior to the termination of the offering of the
Certificates, the Company will not file any amendment to the
Registration Statement or supplement to the Final Prospectus unless
the Company has furnished the Representative a copy of such
-4-
5
amendment or supplement for their review prior to filing and will not
file any such proposed amendment or supplement to which the
Representative reasonably objects. Subject to the foregoing sentence,
the Company will cause the Final Prospectus to be filed with the
Commission pursuant to Rule 424. The Company will advise the
Representative promptly (i) when the Final Prospectus shall have been
filed with the Commission pursuant to Rule 424, (ii) when any
amendment to the Registration Statement relating to the Certificates
shall have become effective, (iii) of any request by the Commission
for any amendment of the Registration Statement or amendment of or
supplement to the Final Prospectus or for any additional information,
(iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose, and (v) of the receipt
by the Company of any notification with respect to the suspension of
the qualification of the Certificates for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any such
stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Certificates is required to be delivered under the Act, any event
occurs as a result of which the Final Prospectus as then amended or
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if it shall be necessary to amend or supplement the
Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will prepare and
file with the Commission, subject to the first sentence of paragraph
(a) of this Section 5, an amendment or supplement which will correct
such statement or omission or an amendment which will effect such
compliance and will use its best efforts to cause any required
post-effective amendment to the Registration Statement containing such
amendment to be made effective as soon as possible.
(c) The Company will furnish to the Representative and
counsel for the Underwriters, without charge, executed copies of the
Registration Statement (including exhibits thereto) and each amendment
thereto which shall become effective on or prior to the Closing Date
and, so long as delivery of a prospectus by an Underwriter or dealer
may be required by the Act, as many copies of any Preliminary
Prospectus and the Final Prospectus and any amendments thereof and
supplements thereto as the Representative may reasonably request. The
Company will pay the expenses of printing all documents relating to
the initial offering, provided that any additional expenses incurred
in connection with the requirement of delivery of a market-making
prospectus will be borne by the Representative.
(d) The Company will make available to the Representative
the Marine Certificate Factor and the RV Certificate Factor for each
month as soon as possible after receipt thereof by the Company from
the Servicer pursuant to Section 13.9 of the Pooling and Servicing
Agreement.
-5-
6
(e) The Company will arrange for the qualification of the
Certificates for sale under the laws of such jurisdictions as the
Representative may reasonably designate, will maintain such
qualifications in effect so long as required for the distribution of
the Certificates and will arrange for the determination of the
legality of the Certificates for purchase by institutional investors;
provided, however, that the Company shall not be required to qualify
to do business in any jurisdiction where it is not now so qualified or
to take any action which would subject it to general or unlimited
service of process in any jurisdiction where it is not now so subject.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Certificates shall be subject
to the accuracy of the representations and warranties on the part of the
Company contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement filed prior to the
Closing Date (including the filing of any document incorporated by reference
therein) and as of the Closing Date, to the accuracy of the statements of the
Company made in any certificates delivered pursuant to the provisions hereof,
to the performance by the Company of its obligations hereunder and to the
following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued, and no proceedings for that purpose shall have been instituted
or threatened; and the Final Prospectus shall have been filed or
mailed for filing with the Commission within the time period
prescribed by the Commission.
(b) The Company shall have furnished to the
Representative the opinion of Stroock & Stroock & Xxxxx LLP, special
counsel for the Company, dated the Closing Date, to the effect of
paragraphs (i), (ii), (iv), (v), (vi), (vii) and (viii) below, and the
opinion of a member of the office of the General Counsel of
NationsCredit Corporation, special counsel for the Company, dated the
Closing Date, to the effect of paragraph (iii) below:
(i) the Certificates, the Purchase Agreement and
the Pooling and Service Agreement conform in all material
respects to the description thereof contained in the Final
Prospectus;
(ii) assuming due authorization, execution and
delivery by the other parties thereto, each of this Agreement,
the Purchase Agreement, the Reimbursement Agreement and the
Pooling and Servicing Agreement constitutes a legal, valid and
binding agreement of the Company, enforceable in accordance
with their respective terms against the Company, as the case
may be, subject (a) to the effect of bankruptcy, insolvency,
reorganization, moratorium and similar laws relating to or
affecting creditors' rights generally and court decisions with
respect thereto, (b) to the understanding that no opinion is
expressed as to the application of equitable principles in any
proceeding, whether at law or in equity, and (c) to
-6-
7
limitations of public policy under applicable securities laws
as to rights of indemnity and contribution thereunder;
(iii) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Company of a character required to be
disclosed in the Registration Statement which is not
adequately disclosed therein and in the Final Prospectus;
(iv) to the knowledge of such counsel, there is no
franchise, contract or other document of a character required
to be described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit, which is not
described or filed as required;
(v) the Registration Statement has become
effective under the Act; to the best knowledge of such counsel
no stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceedings for that purpose
have been instituted or threatened; the Registration
Statement, the Final Prospectus and each amendment thereof or
supplement thereto (other than (i) financial, numerical,
statistical and quantitative information contained therein and
(ii) the information under the heading "The Surety Bond
Issuer," as to which such counsel need express no view) comply
as to form in all material respects with the applicable
requirements of the Act and the Exchange Act and the
respective rules thereunder;
(vi) no consent, approval, authorization or order
of any court or governmental agency or body is required, with
respect to the Company, for the consummation of the
transactions contemplated herein, or in the Purchase
Agreement, the Reimbursement Agreement or the Pooling and
Servicing Agreement, except such as have been obtained under
the Act and such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and
distribution of the Certificates by the Underwriters and such
other a approvals (specified in such opinion) as have been
obtained;
(vii) the Pooling and Servicing Agreement will not
be required to be qualified under the Trust Indenture Act of
1939, as amended, and the Trust is not, and immediately
following the sale of the Certificates pursuant hereto, will
not, be required to be registered under the Investment Company
Act of 1940, as amended; and
(viii) the issuance, offer and sale of the
Certificates have been duly authorized by the Company, and
when issued, authenticated in accordance with the Pooling and
Servicing Agreement and paid for pursuant to this Agreement,
the
-7-
8
Certificates will be validly issued and entitled to the
benefits of the Pooling and Servicing Agreement.
Stroock & Stroock & Xxxxx LLP, special counsel for the Company, shall
also state that it has no reason to believe that the Registration Statement or
any amendment thereof at the time it became effective contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not misleading or
that the Final Prospectus, as amended or supplemented, as of its date and as of
the Closing Date, contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading (other
than (i) financial, numerical, statistical and quantitative information
contained therein and (ii) the information under the heading "The Surety Bond
Issuer," as to which such counsel need express no view).
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than (i) the United
States or the general corporation laws of the State of Delaware, and (ii) with
respect to Stroock & Stroock & Xxxxx LLP, the State of New York, to the extent
deemed proper and specified in such opinion, upon the opinion of other counsel
of good standing believed to be reliable and who are satisfactory to counsel
for the Underwriters; and (B) as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of the Company or its
affiliates and public officials.
(c) NationsCredit Commercial shall have furnished to the
Representative the opinion of a member of the office of the General
Counsel of NationsCredit Corporation, special counsel for
NationsCredit Commercial, dated the Closing Date, to the effect of
paragraphs (i), (ii), (iv), (v) and (vi) below, and the opinion of
Stroock & Stroock & Xxxxx LLP, special counsel for NationsCredit
Commercial, dated the Closing Date, to the effect of paragraph (iii)
below:
(i) NationsCredit Commercial is a duly organized
and validly existing corporation in good standing under the
laws of the State of North Carolina and has the corporate
power and authority to perform its obligations under the
Pooling and Servicing Agreement, the Purchase Agreement and
the Indemnification Agreement;
(ii) each of the Pooling and Servicing Agreement,
the Purchase Agreement and the Indemnification Agreement has
been duly authorized, executed and delivered by NationsCredit
Commercial;
(iii) assuming due authorization, execution and
delivery by the other parties thereto, each of the Pooling and
Servicing Agreement, the Purchase Agreement and the
Indemnification Agreement constitutes a legal, valid and
binding agreement of NationsCredit Commercial, enforceable in
accordance with their respective terms against NationsCredit
Commercial, as the case may be,
-8-
9
subject (a) to the effect of bankruptcy, insolvency,
reorganization, moratorium and similar laws relating to or
affecting creditors' rights generally and court decisions with
respect thereto, (b) to the understanding that no opinion is
expressed as to the application of equitable principles in any
proceeding, whether at law or in equity, and (c) to
limitations of public policy under applicable securities laws
as to rights of indemnity and contribution thereunder;
(iv) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving NationsCredit Commercial of a character
required to be disclosed in the Registration Statement which
is not adequately disclosed therein and in the Final
Prospectus;
(v) neither the consummation of any of the
transactions contemplated in the Pooling and Servicing
Agreement, the Purchase Agreement or the Indemnification
Agreement, nor the fulfillment of the terms thereof will
conflict with, result in a breach of, or constitute a default
under the articles of incorporation or by-laws of
NationsCredit Commercial; and
(vi) neither the consummation of any of the
transactions contemplated in the Pooling and Servicing
Agreement, the Purchase Agreement or the Indemnification
Agreement, nor the fulfillment of the terms thereof will
conflict with, result in a breach of, or constitute a default
under the terms of any indenture or other agreement or
instrument known to such counsel and to which NationsCredit
Commercial is a party or bound, or any order or regulation
known to such counsel to be applicable to NationsCredit
Commercial of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction
over NationsCredit Commercial.
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other than (i)
the United States or the general corporation laws of the State of Delaware.
(ii) with respect to the office of the General Counsel of NationsCredit
Corporation, the general corporation law of the State of North Carolina, and
(iii) with respect to Stroock & Stroock & Xxxxx LLP, the State of New York, to
the extent deemed proper and specified in such opinion, upon the opinion of
other counsel of good standing believed to be reliable and who are satisfactory
to counsel for the Underwriters; and (B) as to matters of fact, to the extent
deemed proper, on certificates of responsible officers of NationsCredit
Commercial or its affiliates and public officials.
(d) The Company shall have furnished to the
Representative an opinion of Stroock & Stroock & Xxxxx LLP, special
counsel for the Company, dated the Closing Date, to the effect that:
-9-
10
(i) the statements in the Final Prospectus under
the heading "Certain Federal Income Tax Consequences" and the
summary thereof under the heading "Prospectus Summary--Tax
Status," to the extent they constitute matters of Federal law
or legal conclusions with respect thereto, have been reviewed
by such counsel and are correct in all material respects; and
(ii) the statements in the Final Prospectus under
the headings "Certain Legal Aspects of the Receivables" and
"ERISA Considerations," to the extent they constitute matters
of Federal law or legal conclusions with respect thereto, have
been reviewed by such counsel and are correct in all material
respects.
(e) The Company shall have furnished to the
Representative an opinion or opinions of Stroock & Stroock & Xxxxx
LLP, special counsel for the Company, dated the Closing Date, to the
effect that (A) the separate corporate existence of the Company would
not be disregarded so as to include the assets and liabilities of the
Company in the bankruptcy estate of NationsCredit Commercial in the
event of a bankruptcy proceeding with respect thereto; and (B) the
Depositor Receivables were sold and transferred from NationsCredit
Commercial to the Company in a manner such that the Depositor
Receivables would not be considered to be property of the bankruptcy
estate of NationsCredit Commercial in the event of a bankruptcy
proceeding with respect thereto. In addition, the Representative shall
have received a reliance letter with respect to any opinion that the
Company is required to deliver to each Rating Agency.
(f) NCMF shall have furnished to the Representative the
opinion of a member of the office of the General Counsel of
NationsCredit Corporation, special counsel for NCMF, dated the Closing
Date, to the effect of paragraphs (i), (ii), (iv) and (v) below, and
the opinion of Stroock & Stroock & Xxxxx LLP, special counsel for
NCMF, dated the Closing Date, to the effect of paragraph (iii) below:
(i) NCMF is a duly organized and validly existing
corporation in good standing under the laws of the State of
Delaware and has the corporate power and authority to perform
its obligations under the Assignment Agreement, dated as of
September 30, 1997, between NCMF and the Trustee (the
"Assignment Agreement") and the Agreement, dated as of
September 30, 1997 between NCMF and Receivables Capital
Corporation (the "NCMF Agreement");
(ii) each of the Assignment Agreement and the NCMF
Agreement has been duly authorized, executed and delivered by
NCMF;
(iii) assuming due authorization, execution and
delivery by the other parties thereto, each of the Assignment
Agreement and the NCMF Agreement constitutes a legal, valid
and binding agreement of NCMF, enforceable in accordance with
their respective terms against NCMF, as the case may be,
subject (a) to the effect of bankruptcy, insolvency,
reorganization, moratorium and similar
-10-
11
laws relating to or affecting creditors' rights generally and
court decisions with respect thereto, (b) to the understanding
that no opinion is expressed as to the application of
equitable principles in any proceeding, whether at law or in
equity, and (c) to limitations of public policy under
applicable securities laws as to rights of indemnity and
contribution thereunder;
(iv) neither the consummation of any of the
transactions contemplated in the Assignment Agreement and the
NCMF Agreement, nor the fulfillment of the terms thereof will
conflict with, result in a breach of, or constitute a default
under the articles of incorporation or by-laws of NCMF; and
(v) neither the consummation of any of the
transactions contemplated in the Assignment Agreement and the
NCMF Agreement, nor the fulfillment of the terms thereof will
conflict with, result in a breach of, or constitute a default
under the terms of any indenture or other agreement or
instrument known to such counsel and to which NCMF is a party
or bound, or any order or regulation known to such counsel to
be applicable to NCMF of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over NCMF.
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other than (i)
the United States or the general corporation laws of the States of Delaware,
and (ii) with respect to Stroock & Stroock & Xxxxx LLP, the State of New York,
to the extent deemed proper and specified in such opinion, upon the opinion of
other counsel of good standing believed to be reliable and who are satisfactory
to counsel for the Underwriters; and (B) as to matters of fact, to the extent
deemed proper, on certificates of responsible officers of NationsCredit
Commercial or its affiliates and public officials.
(g) The Representative shall have received an opinion
from Jenkens & Xxxxxxxxx, a Professional Corporation, special counsel
to the Company, dated the Closing Date, to the effect that:
(i) the Receivables, including the security
interests in the boats and the recreational vehicles, as
applicable, securing the Receivables evidenced by the related
certificates of title, constitute chattel paper pursuant to
the Uniform Commercial Code as in effect in the State of Texas
(the "Texas UCC");
(ii) the UCC-1 financing statement to evidence
sale and assignment of the Depositor Receivables from the
Company to the Trustee (the "Financing Statement") is in
appropriate form for filing in the Office of the Secretary of
State of the State of Texas (the "Filing Office") under the
Texas UCC. Upon the filing of the Financing Statement in the
filing office by the Trustee, the sale of the Depositor
Receivables to the Trustee will be completed. In the event
that a court concludes that the transactions contemplated by
the Pooling and Servicing
-11-
12
Agreement do not constitute a sale of such Depositor
Receivables, then to the extent that a security interest is
created under the Pooling and Servicing Agreement in favor of
the Trustee in the Depositor Receivables, upon the filing of
the Financing Statement in the Filing Office, the security
interest in favor of the Trustee in the Depositor Receivables
and the proceeds thereof will be perfected and, under the
Texas UCC, no other security interest of any creditor of the
Company will be equal or prior to the security interest in the
Depositor Receivables of the Trustee on behalf of the Trust
for the benefit of the Certificateholders; and
(iii) the UCC-1 financing statement to evidence
sale and assignment of the NCMF Receivables from NCMF to the
Trustee (the "NCMF Financing Statement") is in appropriate
form for filing in the Office of the Secretary of State of the
State of Texas under the Texas UCC. Upon the filing of the
NCMF Financing Statement in the filing office by the Trustee,
the sale of the NCMF Receivables to the Trustee will be
completed. In the event that a court concludes that the
transactions contemplated by the Assignment Agreement do not
constitute a sale of such NCMF Receivables, then to the extent
that a security interest is created under the Assignment
Agreement in favor of the Trustee in the NCMF Receivables,
upon the filing of the NCMF Financing Statement in the Filing
Office, the security interest in favor of the Trustee in the
NCMF Receivables and the proceeds thereof will be perfected
and, under the Texas UCC, no other security interest of any
creditor of the Company will be equal or prior to the security
interest in the NCMF Receivables of the Trustee on behalf of
the Trust for the benefit of the Certificateholders.
(h) The Representative shall have received an opinion
from Hunton & Xxxxxxxx, special counsel to the Company, dated the
Closing Date, to the effect that:
(i) the Depositor Receivables, including the
security interests in the boats and recreational vehicles, as
applicable, securing the Depositor Receivables evidenced by
the related certificates of title, constitute chattel paper
pursuant to the Uniform Commercial Code as in effect in the
State of Georgia (the "Georgia UCC"); and
(ii) the UCC-1 financing statement to evidence
sale and assignment of the Depositor Receivables from
NationsCredit Commercial to the Company (the "Financing
Statement") is in appropriate form for filing in the Office of
the Secretary of State of the State of Georgia (the "Filing
Office") under the Georgia UCC. Upon the filing of the
Financing Statement in the filing office by the Company, the
sale of the Depositor Receivables to the Trustee will be
completed. In the event that a court concludes that the
transactions contemplated by the Pooling and Servicing
Agreement do not constitute a sale of such Depositor
Receivables, then to the extent that a security interest is
created under the Pooling
-12-
13
and Servicing Agreement in favor of the Trustee in the
Depositor Receivables, upon the filing of the Financing
Statement in the Filing Office, the security interest in favor
of the Trustee in the Depositor Receivables and the proceeds
thereof will be perfected and, under the Georgia UCC, no other
security interest of any creditor of the Company will be equal
or prior to the security interest in the Depositor Receivables
of the Trustee on behalf of the Trust for the benefit of the
Certificateholders.
(i) The Representative shall have received an opinion of
counsel to the Trustee, dated the Closing Date, to the effect that:
(i) the Trustee has been duly incorporated and is
validly existing as a banking corporation under the laws of
the State of New York and has the power and authority to enter
into and to perform all actions required of it under the
Pooling and Servicing Agreement;
(ii) the Pooling and Servicing Agreement has been
duly authorized, executed and delivered by the Trustee, and
constitutes a legal, valid and binding obligation of the
Trustee, enforceable against the Trustee in accordance with
its terms except as such enforceability may be limited by (A)
bankruptcy, insolvency, liquidation, reorganization,
moratorium, conservatorship, receivership or other similar
laws now or hereafter in effect relating to the enforcement of
creditors' rights in general, as such laws would apply in the
event of a bankruptcy, insolvency, liquidation,
reorganization, moratorium, conservatorship, receivership or
similar occurrence affecting the Trustee, and (B) general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law) as well as concepts of reasonableness, good faith and
fair dealing;
(iii) the Certificates have been duly executed on
behalf of the Trust, authenticated and delivered by the
Trustee;
(iv) the execution and delivery of the Pooling and
Servicing Agreement and, on behalf of the Trust, the
Certificates, by the Trustee and the performance by the
Trustee of the terms thereof do not conflict with or result in
a violation of (A) any law or regulation of the United States
or the State of New York governing the banking or trust powers
of the Trustee, or (B) the certificate of incorporation or
articles of association or by-laws of the Trustee; and
(v) no approval, authorization or other action
by, or filing with, any governmental authority of the United
States or the State of New York having jurisdiction over the
banking or trust powers of the Trustee is required in
connection with the execution and delivery by the Trustee of
the Pooling and Servicing Agreement and, on behalf of the
Trust, the Certificates, or the performance by the Trustee
thereunder.
-13-
14
(j) The Representative shall have received an opinion of
Sidley & Austin, special counsel for the Surety Bond Issuer, dated the
Closing Date, to the effect that:
(i) the Surety Bond Issuer is a New York
domiciled monoline stock insurance company which engages only
in the business of financial guaranty insurance and is duly
incorporated, validly existing, in good standing and licensed
to transact business under the laws of the State of New York
and has the full power and authority (corporate and otherwise)
to issue, and to take all action required of it under, the
Surety Bond;
(ii) the execution, delivery and performance by
the Surety Bond Issuer of the Surety Bond have been duly
authorized by all necessary corporate action on the part of
the Surety Bond Issuer;
(iii) the execution, delivery and performance by
the Surety Bond Issuer of the Surety Bond do not require the
consent or approval of, the giving of notice to, the prior
registration with, or the taking of any other action in
respect of any state or other governmental agency or authority
which has not previously been obtained or effected; provided,
however, the New York State Insurance Law requires that policy
forms and any amendments thereto shall be filed with the
Superintendent of the New York State Insurance Department
within thirty (30) days of their use by the insurer if not
previously so filed;
(iv) the Surety Bond has been duly authorized,
executed and delivered by the Surety Bond Issuer and
constitutes the legally valid and binding obligation of the
Surety Bond Issuer, enforceable in accordance with its terms
subject, as to enforcement, to (a) bankruptcy, reorganization,
insolvency, moratorium and other laws relating to or affecting
the enforcement of creditors' rights generally, including,
without limitation, laws relating to fraudulent transfers or
conveyances, preferences and equitable subordination,
presently or from time to time in effect and general
principles of equity (regardless of whether such enforcement
is considered in a proceeding in equity or at law) and (b) the
qualification that the remedy of specific performance may be
subject to equitable defenses and to the discretion of the
court before which any proceedings with respect thereto may be
brought; and
(v) the Surety Bond is not required to be
registered under the Securities Act of 1933, as amended, in
connection with the offer and sale of the Certificates in the
manner contemplated by the Final Prospectus.
(k) The Surety Bond Issuer shall have furnished to the
Representative a certificate of the Surety Bond Issuer, signed by any
of a Managing Director or General Counsel, dated the Closing Date, to
the effect that the signer of such certificate has
-14-
15
carefully examined the Registration Statement (excluding any documents
incorporated by reference therein), the Final Prospectus and this
Agreement and that, to the best of his knowledge:
(i) any information with respect to the Surety
Bond Issuer in the Registration Statement or any amendment
thereof (including financial information) at the time it
became effective did not contain any untrue statement of a
material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) any information with respect to the Surety
Bond Issuer in the Final Prospectus, as amended or
supplemented, as of its date and as of the Closing Date, did
not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; and
(iii) there has been no change in the financial
condition of the Surety Bond Issuer since December 31, 1996
which would have a material adverse effect on the Surety Bond
Issuer's ability to meet its obligations under the Surety
Bond.
(l) The Company shall have furnished to the
Representative a certificate of the Company, signed by (i) any of the
Chairman of the Board, the President or any Vice President, and (ii)
any of the principal treasury officer, the principal financial officer
or the principal accounting officer of the Company, dated the Closing
Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement (excluding any documents
incorporated by reference therein), the Final Prospectus and this
Agreement and that, to the best of their knowledge:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date and the Company has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement, as amended, has been issued, and
no proceedings for that purpose have been instituted or
threatened; and
-15-
16
(iii) since the respective dates as of which
information is given in the Final Prospectus, there has been
no material adverse change in the condition (financial or
other), earnings, business or properties of the Company,
whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in
the Final Prospectus.
(m) On the date hereof and on the Closing Date, Price
Waterhouse LLP and/or any other firm of certified independent public
accountants acceptable to the Representative shall have furnished to
the Representative a letter, dated the date hereof and the date of the
Closing Date, respectively, in form and substance satisfactory to the
Representative, confirming that they are independent accountants
within the meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder, and stating in
effect that using the assumptions and methodology used by the Company,
all of which shall be described in such letter, they have recalculated
such numbers and percentages set forth in the Final Prospectus as the
Representative may reasonably request and agreed to by Price
Waterhouse LLP, compared the results of their calculations to the
corresponding items in the Final Prospectus, and found each such
number and percentage set forth in the Final Prospectus to be in
agreement with the results of such calculations. To the extent
historical financial information with respect to the Company and/or
historical financial, delinquency or related information with respect
to one or more Servicers is included in the Final Prospectus, such
letter or letters shall also relate to such information.
(n) The Certificates shall have received the rating of
"AAA" from Standard & Poor's Rating Services and "Aaa" from Xxxxx'x
Investors Service, Inc.
(o) On or prior to the Closing Date, NationsCredit
Commercial shall have executed the Indemnification Agreement,
substantially in the form of Exhibit A hereto.
(p) Prior to the Closing Date, the Company shall have
furnished to the Representative such further information, certificates
and documents as the Representative may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representative and its counsel, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representative. Notice of
such cancellation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Certificates provided for herein is not consummated because any condition to
the obligations of the Underwriters set forth in Section 6 hereof is not
satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof
other than
-16-
17
by reason of a default by any of the Underwriters, the Company will reimburse
the Underwriters severally upon demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Certificates.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless
each Underwriter and each person who controls any Underwriter within the
meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement for the registration of
the Certificates as originally filed or in any amendment thereof, or in any
Preliminary Prospectus or the Final Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party for any legal or other expenses
reasonably incurred by it in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that (i) the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished
to the Company by or on behalf of any Underwriter through the Representative
specifically for use in connection with the preparation thereof and (ii) such
indemnity with respect to any Preliminary Prospectus shall not inure to the
benefit of any Underwriter (or any person controlling such Underwriter) from
whom the person asserting any such loss, claim, damage or liability purchased
the Certificates which are the subject thereof if such person did not receive a
copy of the Final Prospectus (or the Final Prospectus as amended or
supplemented) at or prior to the confirmation of the sale of such Certificates
to such person in any case where such delivery is required by the Act and the
untrue statement or omission of a material fact contained in any Preliminary
Prospectus was corrected in the Final Prospectus (or the Final Prospectus as
amended or supplemented). This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representative
specifically for use in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company acknowledges
that the statements set forth under the heading "Underwriting"
-17-
18
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in the documents referred to in the
foregoing indemnity, and you, as the Representative, confirm that such
statements are correct.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party otherwise than under this Section 8. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and, to the extent that it may elect by
written notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof,
with counsel satisfactory to such indemnified party; provided, however, that if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party
or parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying party will not
be liable to such indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed separate
counsel in connection with the assertion of legal defenses in accordance with
the proviso to the next preceding sentence (it being understood, however, that
the indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Representative in the case of subparagraph
(a), representing the indemnified parties under subparagraph (a) who are
parties to such action), (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except that if
clause (i) or (iii) is applicable, such liability shall be only in respect of
the counsel referred to in such clause (i) or (iii). After such notice from
the indemnifying party to such indemnified party, the indemnifying party will
not be liable for the costs and expenses of any settlement of such action
effected by such indemnified party without the consent of the indemnifying
party, which will not be unreasonably withheld, unless such indemnifying party
waived its rights under this Section 8 in writing in which case the indemnified
party may effect such a settlement without such consent. No indemnifying party
may avoid its duty to indemnify under this Section 8 if such indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement or compromise of or consent to the entry of any judgment in, any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement
-18-
19
includes an unconditional release of such indemnified party from all liability
on all claims that are the subject matter of such action. An indemnifying
party shall not be liable for any settlement of any claim effected without its
consent unless its right to consent under this Section 8 has been waived in
writing
(d) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) or (b)
of this Section 8 is due in accordance with its terms but is for any reason
held by a court to be unavailable from the Company or the Underwriters on the
grounds of policy or otherwise, the Company and the Underwriters shall
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) to which the Company and one or more of the Underwriters may be
subject, in such proportion so that the Underwriters are responsible for that
portion represented by the percentage that the underwriting discount bears to
the sum of such discount and the purchase price of the Certificates specified
in Schedule I hereto and the Company is responsible for the balance; provided,
however, that in no case shall any Underwriter (except as may be provided in
any agreement among underwriters relating to the offering of the Certificates)
be responsible for any amount in excess of the underwriting discount applicable
to the Certificates purchased by such Underwriter hereunder.
Notwithstanding anything to the contrary in this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 8,
each person who controls an Underwriter within the meaning of either the Act or
the Exchange Act shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
preceding sentence of this paragraph (d). Any party entitled to contribution
will, promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this paragraph (d), notify such
party or parties from whom contribution may be, sought, but the omission to so
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Marine Certificates agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the
amount of Marine Certificates set forth opposite their names in Schedule I
hereto bear to the aggregate amount of Marine Certificates set forth opposite
the names of all the remaining Underwriters) the Marine Certificates which the
-19-
20
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate amount of Marine Certificates
which the defaulting Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the aggregate amount of Marine Certificates set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Marine
Certificates, and if such nondefaulting Underwriters do not purchase all the
Marine Certificates, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Company. If any one or more Underwriters
shall fail to purchase and pay for any of the RV Certificates agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the
amount of RV Certificates set forth opposite their names in Schedule I hereto
bear to the aggregate amount of RV Certificates set forth opposite the names of
all the remaining Underwriters) the RV Certificates which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided, however,
that in the event that the aggregate amount of RV Certificates which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate amount of RV Certificates set forth in Schedule I
hereto, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the RV Certificates, and
if such nondefaulting Underwriters do not purchase all the RV Certificates,
this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by any Underwriter as
set forth in this Section 9, the Closing Date shall be postponed for such
period, not exceeding seven days, as the Representative shall determine in
order that the required changes in the Registration Statement and the Final
Prospectus or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination
in the absolute discretion of the Representative, by notice given to the
Company prior to delivery of and payment for the Certificates, if prior to such
time (i) trading in securities generally on the New York Stock Exchange shall
have been suspended or limited or minimum prices shall have been established on
such Exchange, or (ii) there shall have occurred any outbreak or material
escalation of hostilities or other calamity or crisis the effect of which on
the financial markets of the United States is such as to make it, in the
judgment of the Representative, impracticable to market the Certificates.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
the Company or its officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter or the Company or any
of the officers, directors or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Certificates. The
provisions of Section 7 and 8 hereof and this Section 11 shall survive the
termination or cancellation of this Agreement.
-20-
21
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representative, will be mailed,
delivered or telegraphed to NationsBanc Xxxxxxxxxx Securities, Inc.,
NationsBank Corporate Center, NC1-007-10-07, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxx, Managing Director, and to
any other Representative at such address, if any, as is specified in writing to
the Company for notices hereunder; or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to NationsCredit Commercial Corporation
of America, 000 X. Xxxx Xxxxxxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000-0000, Attention:
Xxxxxxxx Xxxxxxxxx, Vice President, with a copy to: NationsCredit Commercial
Corporation, One Canterbury Green, 000 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx
00000, Attention: Xxxx Xxxxxxxx, General Counsel.
13. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8 hereof,
and no other person will have any right or obligation hereunder.
14. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO PRINCIPLES OF CONFLICT OF LAWS.
-21-
22
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
NATIONSCREDIT SECURITIZATION
CORPORATION
By:/s/ XXXXXXXX XXXXXXXXX
-----------------------------
Xxxxxxxx Xxxxxxxxx
President
The foregoing Agreement is
hereby confirmed and accepted
as of the date first written
above.
NATIONSBANC XXXXXXXXXX SECURITIES, INC.,
as Representative
By: NATIONSBANC XXXXXXXXXX SECURITIES, INC.
By: /s/ XXXXXX X. XXXXXX
-----------------------------
Xxxxxxx X. Xxxxxx
Managing Director
For themselves and as Representative
for the other several Underwriters,
if any named in Schedule I to the
foregoing Agreement
-22-
23
SCHEDULE I
Principal Amount of
Marine Certificates
Underwriter to be Purchased
----------- -------------------
NationsBanc Xxxxxxxxxx Securities, Inc. . . $ 60,401,859.96
Salomon Brothers Inc. . . . . . . . . . . . $ 60,401,859.96
----------------
Total . . . . . . . . . . . . . . $ 120,803,719.92
Principal Amount
of RV Certificates
Underwriter to be Purchased
----------- ------------------
NationsBanc Xxxxxxxxxx Securities, Inc. . . $ 24,193,267.62
Salomon Brothers Inc. . . . . . . . . . . . $ 24,193,267.62
----------------
Total . . . . . . . . . . . . . . $ 48,386,535.24
-23-
24
EXHIBIT A
INDEMNIFICATION AGREEMENT
This Indemnification Agreement is entered into between
NationsCredit Commercial Corporation of America, a North Carolina corporation
("NationsCredit"), and NationsBanc Xxxxxxxxxx Securities, Inc., in its
individual capacity and as representative of the underwriters identified on
Schedule I hereto (collectively, the "Underwriters"), dated as of October 16,
1997.
The Underwriters and NationsCredit Securitization Corporation,
a Delaware corporation (the "Company"), have entered into an Underwriting
Agreement (the "Underwriting Agreement"), dated as of October 16, 1997,
providing for the sale by the Company to the Underwriters of the 6.35% Marine
Receivable-Backed Certificates (the "Marine Certificates") and the 6.25% RV
Receivable-Backed Certificates (the "RV Certificates" and together with the
Marine Certificates, the "Certificates") of the NationsCredit Grantor Trust
1997-2 (the "Trust"). The Marine Certificates represent beneficial interests
in a pool of marine retail installment sale contracts secured by new and used
boats, boat motors and boat trailers (the "Marine Receivables") and the RV
Certificates represent beneficial interests in a pool of recreational vehicle
installment sale contracts secured by new and used recreational vehicles (the
"RV Receivables" and together with the Marine Receivables, the "Receivables"),
sold by NationsCredit to the Company pursuant to the Purchase Agreement (the
"Purchase Agreement"), dated as of September 30, 1997, and certain monies
received on or after September 30, 1997, security interests in the boats and
marine equipment financed by the Marine Contract Group, security interests in
the recreational vehicles financed by the RV Contract Group, an irrevocable
surety bond, limited in amount, covering certain payments under the Receivables
(the "Surety Bond"), issued by Capital Markets Assurance Corporation (the
"Surety Bond Issuer"), such amounts as from time to time may be held in one or
more trust accounts which will be established and maintained by the Servicer
pursuant to the Pooling and Servicing Agreement (as defined below), the rights
of the Company under that certain Purchase Agreement dated as of September 30,
1997 between the Company and NationsCredit, the rights of NationsCredit Marine
Funding Corporation ("NCMF") to cause NationsCredit to repurchase the NCMF
Receivables upon the breach of certain representations and warranties, the
proceeds from any recourse rights of NCMF or the Company against any seller of
new and used boats, boat motors and boat trailers financed by the Receivables
pursuant to any agreement with a Dealer, the right to proceeds from claims on
physical damage, credit life and disability insurance policies relating to the
Receivables, and any property that shall have secured a Receivable and that
shall have been acquired by the Trustee. The Certificates will be issued
pursuant to a Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of September 30, 1997, among the Company as Depositor,
NationsCredit as Servicer and Bankers Trust Company as Trustee. This
Indemnification Agreement is being entered into by the parties hereto as a
condition to the execution of Underwriting Agreement and to induce the
Underwriters to execute the same.
25
Capitalized terms used but not defined herein shall have the meanings ascribed
thereto in the Underwriting Agreement.
1. Indemnification. (a) NationsCredit agrees to indemnify and
hold harmless each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement for the registration of
the Certificates as originally filed or in any amendment thereof, or in any
Preliminary Prospectus or the Final Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party for any legal or other expenses
reasonably incurred by it in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that (i)
NationsCredit will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished
to the Company or NationsCredit by or on behalf of any Underwriter through the
Representatives specifically for use in connection with the preparation thereof
and (ii) such indemnity with respect to any Preliminary Prospectus shall not
inure to the benefit of any Underwriter (or any person controlling such
Underwriter) from whom the person asserting any such loss, claim. damage or
liability purchased the Certificates which are the subject thereof if such
person did not receive a copy of the Final Prospectus (or the Final Prospectus
as amended or supplemented) at or prior to the confirmation of the sale of such
Certificates to such person in any case where such delivery is required by the
Act and the untrue statement or omission of a material fact contained in any
Preliminary Prospectus was corrected in the Final Prospectus (or the Final
Prospectus as amended or supplemented). This indemnity agreement will be in
addition to any liability which NationsCredit may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless NationsCredit, each of its directors, and each person who controls
NationsCredit within the meaning of either the Act or the Exchange Act, to the
same extent as the foregoing indemnity from NationsCredit to each Underwriter,
but only with reference to written information relating to such Underwriter
furnished to the Company or NationsCredit by or on behalf of such Underwriter
through the Representatives specifically for use in the preparation of the
documents referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any Underwriter may otherwise have.
NationsCredit acknowledges that the statements set forth under the heading
"Underwriting" constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in the documents referred to
in the foregoing indemnity, and the Representatives confirm that such
statements are correct.
-25-
26
(c) Promptly after receipt by an indemnified party under this
Indemnification Agreement of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under this Indemnification Agreement, notify the
indemnifying party in writing of the commencement thereof; but the omission so
to notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party otherwise than under this Indemnification
Agreement. In case any such action is brought against any indemnified party,
and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and, to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it and/or
other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall
have the light to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of
such action and approval by the indemnified party of counsel, the indemnifying
party will not be liable to such indemnified party under this Indemnification
Agreement for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next
preceding sentence (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one separate counsel,
approved by the Representatives in the case of subparagraph (a) and approved by
NationsCredit in the case of subparagraph (b), representing the indemnified
parties under Subparagraph (a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense
of the indemnifying party; and except that if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel referred to
in such clause (i) or (iii). After such notice from the indemnifying party to
such indemnified party, the indemnifying party will not be liable for the costs
and expenses of any settlement of such action effected by such indemnified
party without the consent of the indemnifying party, which will not be
unreasonably withheld, unless such indemnifying party waived its rights under
this Indemnification Agreement in writing in which case the indemnified party
may effect such a settlement without such consent. No indemnifying party may
avoid its duty to indemnify under this Indemnification Agreement if such
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement or compromise of, or consent to the entry of any
judgment in, any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on all
claims that are the subject matter of such action. An indemnifying party shall
not be liable for any settlement of any claim effected without its
-26-
27
consent unless its right to consent under this Indemnification Agreement has
been waived in writing.
2. Contribution. To provide for just and equitable contribution
in circumstances in which the indemnification provided for in Section l (a) or
l (b) of this Indemnification Agreement is due in accordance with its terms but
is for any a reason held by a court to be unavailable from NationsCredit or the
Underwriters on the grounds of policy or otherwise, NationsCredit and the
Underwriters shall a contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) to which NationsCredit and one
or more of the Underwriters may be subject, in such proportion so that the
Underwriters are responsible for that portion represented by the percentage
that the underwriting discount bears to the sum of such discount and the
purchase price of the Certificates specified in Schedule I hereto and
NationsCredit is responsible for the balance; provided, however, that in no
case shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Certificates) be responsible for
any amount in excess of the underwriting discount applicable to the
Certificates purchased by such Underwriter hereunder.
Notwithstanding anything to the contrary in this Section 2, no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Indemnification
Agreement, each person who controls an Underwriter within the meaning of either
the Act or the Exchange Act shall have the same rights to contribution as such
Underwriter, and each person who controls NationsCredit within the meaning of
either the Act or the Exchange Act and each director of NationsCredit shall
have the same rights to contribution as NationsCredit, subject in each case to
the preceding sentence of this Section 2. Any party entitled to contribution
will, promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this Section 2, notify such
party or parties from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this Section 2.
3. No Termination. NationsCredit agrees that it shall not
terminate, amend or modify the Purchase Agreement or the Pooling and Servicing
Agreement or in each case any portion thereof without the prior written consent
of each Underwriter.
4. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telegraphed to NationsBanc Xxxxxxxxxx Securities, Inc.,
NationsBank Corporate Center, NC1-007-10-07, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxx, Managing Director, and to
any other Representative at such address, if any, as is specified in writing to
NationsCredit for notices hereunder; or, if sent to NationsCredit, will be
mailed, delivered or telegraphed and confirmed to it at NationsCredit
Commercial Corporation of America, 000 X.
-00-
00
Xxxx Xxxxxxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000-0000, Attention: Xxxxxxxx
Xxxxxxxxx, Vice President, with a copy to: NationsCredit Corporation, One
Canterbury Green, 000 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, Attention:
Xxxx Xxxxxxxx, General Counsel.
5. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 1 hereof,
and no other person will have any right or obligation hereunder.
6. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO PRINCIPLES OF CONFLICT OF LAWS.
7. Counterparts. This Indemnification Agreement may be executed
in any number of counterparts, each of which when so executed shall be deemed
to be an original, but all of such counterparts shall together constitute one
instrument.
-28-
29
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among NationsCredit and the several Underwriters.
NATIONSCREDIT COMMERCIAL
CORPORATION OF AMERICA
By:
--------------------------------------
Xxxxxxxx Xxxxxxxxx
Vice President
NATIONSBANC XXXXXXXXXX SECURITIES, INC.,
as Representative
By: NATIONSBANC XXXXXXXXXX SECURITIES,
INC.
By:
--------------------------------------
Xxxxxxx X. Xxxxxx
Managing Director
-29-
30
SCHEDULE I
Underwriters
NationsBanc Xxxxxxxxxx Securities, Inc.
Salomon Brothers Inc
-30-
