1
EXHIBIT 4.3
This ASSIGNMENT AGREEMENT, dated as of April 30, 1997, is made between
NATIONSCREDIT MARINE FUNDING CORPORATION, a Delaware corporation ("NCMF") and
BANKERS TRUST COMPANY, as Trustee of the NationsCredit Grantor Trust 1997-1 (the
"Trustee").
WITNESSETH THAT: In consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
Capitalized but undefined terms shall have the meanings set forth in
the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of April 30, 1997, among NationsCredit Securitization Corporation, a
Delaware corporation, as Depositor (the "Depositor"), NationsCredit Commercial
Corporation of America, a North Carolina corporation, as Servicer
("NationsCredit Commercial" or the "Servicer"), and Bankers Trust Company, as
Trustee and as Collateral Agent.
SECTION 1. Conveyance of NCMF Receivables. (a) In consideration of the
payment of $154,703,288.72 (the "Purchase Price") on the Closing Date by the
Trustee, on behalf of the Certificateholders and the Surety Bond Issuer, NCMF
does hereby sell, transfer, assign and otherwise convey on the Closing Date to
the Trustee, in trust for the benefit of the Certificateholders and the Surety
Bond Issuer, without recourse:
(i) all right, title and interest of NCMF in and to the NCMF
Receivables and all payments received thereunder, in the case of Simple
Interest Receivables which are NCMF Receivables and due thereunder in
the case of Precomputed Receivables which are NCMF Receivables, in each
case, after the Cutoff Date;
(ii) the interest of NCMF in the security interests in the
Boats related to NCMF Receivables granted by Obligors pursuant to the
NCMF Receivables;
(iii) the right of NCMF pursuant to Section 1.7 of the
Purchase and Sale Agreement to cause NationsCredit Commercial to
repurchase NCMF Receivables from NCMF for breaches of the
representations and warranties contained in paragraphs (h) or (i) of
Exhibit III to the Purchase and Sale Agreement (provided that paragraph
(i) shall be limited to paragraphs (iii), (vi), (xiii) and (xxiii) of
the definition of Eligible Receivable (as such term is defined in the
Purchase and Sale Agreement));
(iv) the interest of NCMF in any proceeds from claims on any
physical damage, credit life or disability insurance policies covering
Boats related to NCMF Receivables or Obligors related to NCMF
Receivables;
2
(v) the interest of NCMF in any proceeds from recourse to
Dealers on NCMF Receivables; and
(vi) any proceeds of the foregoing.
"NCMF Receivables" means the marine retail installment
contracts listed on Schedule A.
The interests set forth in clauses (i)-(vi) of this Section
1(a) are hereinafter referred to as the "NCMF Interests."
(b) NCMF intends that the assignment and transfer herein contemplated
constitute a sale of the NCMF Receivables, conveying good title thereto free and
clear of any liens and encumbrances, from NCMF to the Trust and that such
property not be part of NCMF's estate or property of NCMF in the event of any
insolvency by NCMF, and the Trustee acquiesces in such characterization. In the
event that such conveyance is deemed to be, or to be made as security for, a
loan, NCMF hereby grants to the Trust a first priority perfected security
interest in all of NCMF's right, title and interest in and to the NCMF
Receivables, and this Assignment Agreement shall constitute a security agreement
under applicable law.
SECTION 2. Deliveries at Closing. On the Closing Date NCMF shall
deliver to the Trustee the following:
(i) A Certificate of Good Standing of NCMF in the State of
Delaware;
(ii) A Secretary's Certificate of NCMF, which has as exhibits
thereto the Certificate of Incorporation and By-laws of NCMF and
resolutions of the Board of Directors of NCMF authorizing the
transactions contemplated by this Assignment Agreement;
(iii) An Officer's Certificate of NCMF relating to the
incumbency of officers of NCMF;
(iv) UCC-1 Financing Statements executed by NCMF with respect
to the grant of the security interest set forth in Section 1(a)(ii) to
be filed with the Secretary of State of the State of Texas; and
(v) An opinion of Counsel with respect to certain corporate
matters of NCMF in form and substance reasonably satisfactory to the
Trustee.
SECTION 3. Representations and Warranties of NCMF. NCMF hereby makes
the following representations and warranties to the Trustee on behalf of the
Certificateholders and the Surety Bond Issuer:
(a) Organization and Good Standing. NCMF has been duly organized and is
validly existing as a corporation in good standing under the laws of the State
of Delaware, with
-2-
3
power and authority to own its properties and to conduct its business as such
properties are currently owned and such business is now conducted, and had at
all relevant times, and shall have, power, authority and legal right to acquire,
own and sell the NCMF Receivables. NCMF's principal place of business as of the
Closing Date is in Texas.
(b) Due Qualification. NCMF 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, licenses or
approvals, except where the lack of such qualifications or approvals would not
have a material adverse effect on the business or properties of NCMF.
(c) Power and Authority. NCMF has the power and authority to execute
and deliver this Assignment Agreement and to carry out its terms; and the
execution, delivery, and performance of this Assignment Agreement has been duly
authorized by NCMF by all necessary corporate action.
(d) Valid Sale; Binding Obligations. The sale, transfer and assignment
of the NCMF Interests by NCMF to the Trust, pursuant to Section 1, constitutes
(a) a valid sale, transfer and assignment of the NCMF Interests, enforceable
against creditors of and purchasers from NCMF and (b) a legal valid and binding
obligation of NCMF 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.
(e) No violation. The consummation of the transactions contemplated by
this Assignment 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 incorporation or by-laws of NCMF, or any indenture,
agreement, or other instrument to which NCMF 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; nor violate any law or any order, rule, or regulation applicable to
NCMF of any court or of any Federal or state regulatory body, administrative
agency, or other governmental instrumentality having jurisdiction over NCMF 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 NCMF or its
properties: (A) asserting the invalidity of this Assignment Agreement; (B)
seeking to prevent the consummation of any of the transactions contemplated by
this Assignment Agreement; or (C) seeking any determination or ruling that might
materially and adversely affect the performance by NCMF of its obligations
under, or the validity or enforceability of this Assignment 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
-3-
4
the execution and delivery by; and NCMF of this Assignment Agreement, the
performance by NCMF of the transactions contemplated by this Assignment
Agreement, and the fulfillment by NCMF of the terms hereof, have been obtained.
(h) Title. It is the intention of NCMF that the sale, transfer and
assignment of the NCMF Interests contemplated by Section 1 constitute a sale,
transfer and assignment of the NCMF Interests from NCMF to the Trust and that
the beneficial interest in and title to the NCMF Interests not be part of the
debtor's estate in the event of the filing of a bankruptcy petition by or
against NCMF under any bankruptcy law. In the event that such sale, transfer and
assignment is deemed to be made as security for a loan, NCMF hereby grants to
the Trustee a first priority security interest in all of NCMF's right title and
interest in and to the NCMF Interests and this Assignment Agreement shall
constitute a security agreement under applicable law. No Interest in any portion
of the NCMF Interests has been sold, transferred, assigned, or pledged by NCMF
to any person other than the Trust. Immediately prior to the sale, transfer and
assignment contemplated by Section 1, NCMF had good and marketable title to each
NCMF Receivable, free and clear of all Liens, encumbrances, security interests
and rights of others; and the sale and assignment has been perfected under the
Uniform Commercial Code in affect in Texas.
SECTION 4. Payment Instructions. The Trustee shall deposit, or cause to
be deposited, the Purchase Price into an account specified by NCMF.
SECTION 5. Governing Law. THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
SECTION 6. Counterparts. This Assignment 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.
SECTION 7. No Petition. The Trust will not institute against, or join
any other person in instituting against, NCMF, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding, or other proceeding under any
federal or state bankruptcy or similar law, until August 16, 2014.
SECTION 8. Further Assurances. Consistent with the terms and conditions
hereof, each party hereto will execute and deliver such instruments,
certificates and other documents and take such other action as any party may
reasonably require in order to carry out this Agreement and the transactions
contemplated hereby.
-4-
5
IN WITNESS WHEREOF, the parties hereby have caused this Assignment
Agreement to be executed by their respective officers thereunto duly authorized
as of the date and year first above written.
NATIONSCREDIT MARINE FUNDING CORPORATION
By: /s/ Xxxxxxxx Xxxxxxxxx
--------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Vice President and Treasurer
BANKERS TRUST COMPANY, as Trustee of
NationsCredit Grantor Trust 1997-1
By: /s/ Xxxxxxx Xxxxx
--------------------------------------
Name: Xxxxxxx Xxxxx
Title: Assistant Vice President
Acknowledged and agreed to:
NationsCredit Commercial Corporation
of America
By: /s/ Xxxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Vice President and Treasurer
-5-
