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EXHIBIT 4.3
EXECUTION COPY
This ASSIGNMENT AGREEMENT, dated as of September 30, 1997, is
made between NATIONSCREDIT MARINE FUNDING CORPORATION, a Delaware corporation
("NCMF") and BANKERS TRUST COMPANY, as Trustee of the NationsCredit Grantor
Trust 1997-2 (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 September 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 $59,168,389.20 (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 after the Cutoff
Date;
(ii) all right, title and 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, title and interest 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 11 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) all right, title and 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) all right, title and interest of NCMF in any proceeds
from recourse to Dealers on NCMF Receivables; and
(vi) any proceeds of the foregoing.
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"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. Repurchase Amounts. On the Deposit Date next
succeeding the date on which NCMF receives any amounts from NationsCredit
Commercial in respect of repurchases of NCMF Receivables as a result of a
breach of any of the representations and warranties described in Section
1(a)(iii) hereof, NCMF shall remit such amounts to the Servicer for Deposit in
to the RV Collection Account and Marine Collection Account.
SECTION 3. 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 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 4. 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 and chief executive office as of the Closing
Date is in Texas.
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(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 Assigment 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
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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
effect in Texas.
SECTION 5. Payment Instructions. The Trustee shall deposit, or
cause to be deposited, the Purchase Price into an account specified by NCMF.
SECTION 6. Governing Law. THIS ASSIGNMENT AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK.
SECTION 7. 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 8. 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 9. 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.
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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
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Name: Xxxxxxxx Xxxxxxxxx
Title: Vice President and Treasurer
BANKERS TRUST COMPANY, as Trustee
of NationsCredit Grantor Trust
1997-2
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Assistant Vice President
Acknowledged and agreed to:
NationsCredit Commercial Corporation
of America
By: /s/ XXXXXXXX XXXXXXXXX
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Name: Xxxxxxxx Xxxxxxxxx
Title: Vice President and Treasurer
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