1
Exhibit 4.6
FORM OF
This ASSIGNMENT AGREEMENT, dated as of ___________, 1997, is
made between NATIONSCREDIT MARINE FUNDING CORPORATION, a Delaware corporation
("NCMF") and BANKERS TRUST COMPANY, as Trustee of the NationsCredit Grantor
Trust 1997-2 (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 _______, 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 $______________ (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));
2
(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;
(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 tNCMF'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)(b)(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.
- 2 -
3
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 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
- 3 -
4
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 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:
--------------------------------
Title: Vice President and
Treasurer
BANKERS TRUST COMPANY, as Trustee
of NationsCredit Grantor Trust
1997-2
By:
--------------------------------
Name:
Title:
Acknowledged and agreed to:
NationsCredit Commercial Corporation
of America
By:
------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Vice President and Treasurer
- 5 -
