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EXHIBIT 1.1
NATIONSCREDIT SECURITIZATION CORPORATION
DEPOSITOR
NATIONSCREDIT GRANTOR TRUST 1997-1
UNDERWRITING AGREEMENT
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New York, New York
May 15, 1997
NationsBanc Capital Markets, 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
1997-1 (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 April 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 6.75% Marine
Receivable-Backed 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
"Receivables"), certain monies received under the Simple Interest Receivables
and certain monies due under the Precomputed Receivables, in each case, on or
after April 30, 1997, security interests in the boats and marine equipment
financed thereby, 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
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Company under that certain Purchase Agreement, dated as of April 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
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 333-22327, 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 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
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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 is 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.
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
Certificates set forth opposite such Underwriter's name in Schedule I hereto at
the purchase price of 99.70% of the principal amount of such Certificates, plus,
in each
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case, interest calculated from and including May 15, 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 May 22, 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 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
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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
Certificate Factor for each month as soon as possible after the Company
has received such Certificate Factor from the Servicer pursuant to
Section 13.9 of the Pooling and Servicing Agreement.
(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
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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),
(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
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
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disclosed in the Registration Statement which is not
adequately disclosed therein and in the Final Prospectus;
(iv) to the best 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 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
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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, 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;
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(iv) to the best 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:
(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
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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
April 30, 1997, between NCMF and the Trustee (the "Assignment
Agreement") and the Agreement, dated as of April 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 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
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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 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 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 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
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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 the Company 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 Company,
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 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 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.
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13
(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.
(j) The Representative shall have received an opinion of Shaw,
Pittman, Xxxxx & Xxxxxxxxxx, 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
-13-
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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 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
at the time it became effective did not contain any untrue
statement of a material fact or omit to state a material
-14-
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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
(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
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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 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
-16-
17
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" 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
-17-
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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 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
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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 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 Certificates set
forth opposite their names in Schedule I hereto bear to the aggregate amount of
Certificates set forth opposite the names of all the remaining Underwriters) the
Certificates which the defaulting Underwriter or Underwriters agreed but failed
to purchase; provided, however, that in the event that the aggregate amount of
Certificates which the defaulting Underwriter or Underwriters agreed but failed
to purchase shall exceed 10% of the aggregate amount of 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
Certificates, and if such nondefaulting Underwriters do not purchase all the
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.
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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.
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 Capital Markets, 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:
Xxxxx Xxxxxxxxx, Vice President, with a copy to: NationsCredit 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.
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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
Vice President
The foregoing Agreement is hereby confirmed and accepted as of the date first
written above.
NATIONSBANC CAPITAL MARKETS, INC.,
as Representative
By: NATIONSBANC CAPITAL MARKETS, INC.
By: /s/ Xxxxxxx 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
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SCHEDULE I
Principal Amount
of Certificates to
Underwriters be Purchased
------------ ------------
NationsBanc Capital Markets, Inc.................... $ 90,890,562.82
---------------
Bear, Xxxxxxx & Co. Inc............................. $ 90,890,562.81
---------------
Total...................................... $181,781,125.63
---------------
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23
EXHIBIT A
INDEMNIFICATION AGREEMENT
-------------------------
This Indemnification Agreement is entered into between NationsCredit
Commercial Corporation of America, a North Carolina corporation
("NationsCredit"), and NationsBanc Capital Markets, Inc., in its individual
capacity and as representative of the underwriters identified on Schedule I
hereto (collectively, the "Underwriters"), dated as of May 15, 1997.
The Underwriters and NationsCredit Securitization Corporation, a
Delaware corporation (the "Company"), have entered into an Underwriting
Agreement (the "Underwriting Agreement"), dated as of May 15, 1997, providing
for the sale by the Company to the Underwriters of the 6.75% Marine
Receivable-Backed Certificates (the "Certificates") of the NationsCredit Grantor
Trust 1997-1 (the "Trust"). The 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 "Receivables"), sold by NationsCredit to the
Company pursuant to the Purchase Agreement (the "Purchase Agreement"), dated as
of April 30, 1997, and certain monies received under the Simple Interest
Receivables and certain monies due under the Precomputed Receivables, in each
case, on or after May 15, 1997, security interests in the boats and marine
equipment financed thereby, 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, the fights of the Company under that certain Purchase Agreement dated
as of April 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 April 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. 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
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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 s 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.
(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
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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 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
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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 Capital Markets, 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. Xxxx Xxxxxxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000-0000,
Attention: Xxxxx Xxxxxxxxx, Vice President, with a copy to: NationsCredit
Corporation, One Canterbury Green, 000 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx
00000, Attention: Xxxx Xxxxxxxx, General Counsel.
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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.
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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 CAPITAL MARKETS, INC.,
as Representative
By: NATIONSBANC CAPITAL MARKETS, INC.
By:
---------------------------
Xxxxxxx X. Xxxxxx
Managing Director
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SCHEDULE I
Underwriters
------------
NationsBanc Capital Markets, Inc.
Bear, Xxxxxxx & Co. Inc.
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