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Exhibit 4.2
NATIONSCREDIT SECURITIZATION CORPORATION,
Depositor,
and
NATIONSCREDIT COMMERCIAL CORPORATION OF AMERICA,
Servicer.
FORM OF
STANDARD TERMS AND CONDITIONS OF AGREEMENT
Dated as of __________, 1997
$_____________
NationsCredit Grantor Trust 1997-2
$_____________
____% Marine Receivable-Backed Certificates
$_____________
____% RV Receivable-Backed Certificates
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NATIONSCREDIT GRANTOR TRUST 1997-2
STANDARD TERMS AND CONDITIONS OF AGREEMENT
DATED AS OF __________, 1997
INTRODUCTION
These Standard Terms and Conditions of Agreement shall be
applicable to NationsCredit Grantor Trust 1997-2 formed on the date hereof,
with respect to which a Pooling and Servicing Agreement incorporating by
reference these Standard Terms and Conditions of Agreement shall have been
executed.
ARTICLE XI
Definitions
SECTION 11.1. Definitions. Whenever used in the Agreement
(including these Standard Terms and Conditions of Agreement) the following
words and phrases, unless the context otherwise requires, shall have the
following meanings:
"Account Property" means all amounts and investments held from
time to time in the Marine Reserve Account and the RV Reserve Account , as the
case may be (whether in the form of deposit accounts, Physical Property,
book-entry securities, uncertificated securities, securities entitlements,
investment property or otherwise), and all proceeds of the foregoing.
"Agreement" means the Pooling and Servicing Agreement executed
by the Depositor, the Servicer, the Trustee and the Collateral Agent as of the
Cutoff Date, into which these Standard Terms and Conditions of Agreement shall
be incorporated by reference, and all amendments and supplements thereto.
"Amount Financed" with respect to a Marine Receivable means
the original amount advanced under the Marine Receivable, and with respect to a
RV Receivable means the original amount advanced under the RV Receivable,
toward the purchase price of the Boat, in the case of Marine Receivables, or
toward the purchase price of the RV, in the case of RV Receivables, and any
cost to the related Obligor of any dealer installed options, extended warranty
plans and credit life and disability insurance, including any amount allocable
to the premium of collateral protection insurance purchased by NationsCredit
Commercial prior to the Cutoff Date.
"Annual Percentage Rate" or "APR" of a Receivable means the
annual rate of finance charges stated in the Receivable.
"Boat" means a new or used boat, boat motor or boat trailer,
securing an Obligor's indebtedness under the respective Marine Receivable.
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"Book-Entry Certificates" shall mean beneficial interests in
the Certificates, ownership and transfers of which shall be made through book
entries by a Clearing Agency as described in Section 15.8.
"Business Day" means any day other than (i) a Saturday or a
Sunday or (ii) a day on which banking institutions in the City of New York, New
York shall be authorized or obligated by law or executive order to be closed.
"Carry-Over Monthly Marine Interest" means, for any
Distribution Date, the aggregate Monthly Marine Interest Payments for prior
Distribution Dates which have not been paid, after giving effect to any
payments or distributions made pursuant to clauses (ii) through (iv) of Section
14.5(a).
"Carry-Over Monthly Marine Principal" means, for any
Distribution Date, the aggregate Monthly Marine Principal Payments for prior
Distribution Dates which have not been paid, after giving effect to any
payments or distributions made pursuant to clauses (ii) through (iv) of Section
14.5(a).
"Carry-Over Monthly Marine Servicing Fee" means, for any
Distribution Date, the aggregate Monthly Marine Servicing Fees for prior
Distribution Dates which have not been paid after giving effect to any payments
or distributions made pursuant to clauses (ii) through (iv) of Section 14.5(a).
"Carry-Over Monthly RV Interest" means, for any Distribution
Date, the aggregate Monthly RV Interest Payments for prior Distribution Dates
which have not been paid, after giving effect to any payments or distributions
made pursuant to clauses (ii) through (iv) of Section 14.5A(a).
"Carry-Over Monthly RV Principal" means, for any Distribution
Date, the aggregate Monthly RV Principal Payments for prior Distribution Dates
which have not been paid, after giving effect to any payments or distributions
made pursuant to clauses (ii) through (iv) of Section 14.5A(a).
"Carry-Over Monthly RV Servicing Fee" means, for any
Distribution Date, the aggregate Monthly RV Servicing Fees for prior
Distribution Dates which have not been paid after giving effect to any payments
or distributions made pursuant to clauses (ii) through (iv) of Section
14.5A(a).
"Certificate" means a Marine Certificate or an RV Certificate.
"Certificate Balance" means as of any date of determination,
the Marine Certificate Balance and the RV Certificate Balance.
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"Certificate Owner" shall mean, with respect to a Book-Entry
Certificate, the Person who is the owner of such Book-Entry Certificate, as
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly or as an indirect
participant, in accordance with the rules of such Clearing Agency).
"Certificate Register" and "Certificate Registrar" mean the
register maintained and the registrar appointed pursuant to Section 15.3.
"Certificateholder" or "Holder" means the Person in whose name
the respective Certificate shall be registered in the Certificate Register,
except that, solely for the purposes of giving any consent, waiver, request or
demand pursuant to the Agreement, the interest evidenced by any Certificate
registered in the name of the Depositor or the Servicer, or any Person
controlling, controlled by, or under common control with the Depositor or the
Servicer, shall not be taken into account in determining whether the requisite
percentage necessary to effect any such consent, waiver, request or demand
shall have been obtained.
"Clearing Agency" shall mean an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities Exchange Act of
1934, as amended.
"Clearing Agency Participant" shall mean a broker, dealer,
bank, other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities
deposited with the Clearing Agency.
"Collateral Agent" means the Person acting as Collateral Agent
under this Agreement, its successor in interest, and any successor Collateral
Agent appointed pursuant to Section 19.10.
"Collection Period" means each calendar month.
"Corporate Trust Office" means the office of the Trustee at
which its corporate trust business shall be administered, which office at the
date of the Agreement is 0 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Cutoff Date" means the date specified as such in Section 6.1 of the Agreement.
"Dealer" means the dealer who sold a Boat or RV, as
applicable, and who originated and assigned the respective Marine Receivable or
respective RV Receivable, as applicable, to NationsCredit Commercial under an
existing agreement between such dealer and NationsCredit Commercial.
"Defaulted Receivable" means a Marine Receivable or RV
Receivable as to which either (x) the Servicer has determined, in accordance
with its customary servicing procedures, that eventual payment in full is
unlikely or (y) (1) 90 or more days have elapsed since the related
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Boat or RV, as applicable, has been repossessed by the Servicer, in the case of
any Marine Receivable or RV Receivable with a Principal Balance of $10,000 or
less as of the day such Boat or RV, as applicable, was repossessed by the
Servicer or (2) 180 or more days have elapsed since the related Boat or RV, as
applicable, has been repossessed by the Servicer, in the case of any Marine
Receivable or RV Receivable, as applicable, with a Principal Balance of greater
than $10,000 as of the day such Boat or RV, as applicable, was repossessed by
the Servicer.
"Defaulted Marine Receivable" means a Defaulted Receivable
which is a Marine Receivable.
"Defaulted RV Receivable" means a Defaulted Receivable which
is a RV Receivable.
"Definitive Certificates" means the Certificates specified in
Section 15.8.
"Delivery" or "Deliver" when used with respect to Account
Property means:
(a) with respect to bankers' acceptances,
commercial paper, negotiable certificates of deposit and other
obligations that constitute "instruments" within the meaning
of Section 9-105(1)(i) of the Relevant UCC and are susceptible
to physical delivery, transfer thereof to the Trustee or its
nominee, agent or custodian by physical delivery to the
Trustee or its nominee, agent or custodian endorsed to, or
registered in the name of, the Trustee, as trustee for the
benefit of the Certificateholders, or its nominee, agent or
custodian or endorsed in blank, and, with respect to a
certificated security (as defined in Section 8-102 of the
Relevant UCC) transfer thereof (i) by delivery of such
certificated security endorsed to, or registered in the name
of, the Trustee, as trustee for the benefit of the
Certificateholders, or its nominee, agent or custodian or
endorsed in blank to a financial intermediary (as defined in
Section 8-313 of the Relevant UCC) and the making by such
financial intermediary of entries on its books and records
identifying such certificated securities as belonging to the
Trustee, as trustee for the benefit of the Certificateholders,
or its nominee, agent or custodian and the sending by such
financial intermediary of a confirmation of the purchase of
such certificated security by the Trustee or its nominee,
agent or custodian, or (ii) by delivery thereof to a "clearing
corporation" (as defined in Section 8-102(3) of the Relevant
UCC) and the making by such clearing corporation of
appropriate entries on its books reducing the appropriate
securities account of the transferor and increasing the
appropriate securities account of a financial intermediary by
the amount of such certificated security, the identification
by the clearing corporation of the certificated securities for
the sole and exclusive account of the financial intermediary,
the maintenance of such certificated securities by such
clearing corporation or a "custodian bank" (as defined in
Section 8102(4) of the Relevant UCC) or the nominee of either
subject to the clearing corporation's exclusive
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control, the sending of a confirmation by the financial
intermediary of the purchase by the Trustee, as trustee for
the benefit of the Certificateholders, or its nominee, agent
or custodian of such securities and the making by such
financial intermediary of entries on its books and records
identifying such certificated securities as belonging to the
Trustee, as trustee for the benefit of the Certificateholders,
as applicable, or its respective nominee, agent or custodian
(all of the foregoing, "Physical Property"), and, in any
event, any such Physical Property in registered form shall be
in the name of the Trustee, as trustee for the benefit of the
Certificateholders, or its nominee, agent or custodian; and
such additional or alternative procedures as may hereafter
become appropriate to effect the complete transfer of
ownership of any such Account Property (as defined herein) to
the Trustee, as trustee for the benefit of the
Certificateholders, or its nominee, agent or custodian,
consistent with changes in applicable law or regulations or
the interpretation thereof;
(b) with respect to any securities issued by the
U.S. Treasury, the Federal Home Loan Mortgage Corporation or
by the Federal National Mortgage Association that is a
book-entry security held through the Federal Reserve System
pursuant to Federal book-entry regulations, the following
procedures, all in accordance with applicable law, including
applicable federal regulations and Articles 8 and 9 of the
Relevant UCC: book-entry registration of such Account Property
to an appropriate book-entry account maintained with a Federal
Reserve Bank by a financial intermediary which is also a
"depository" pursuant to applicable federal regulations and
issuance by such financial intermediary of a deposit advice or
other written confirmation of such book-entry registration to
the Trustee or its nominee, agent or custodian of the purchase
by the Trustee, as trustee for the benefit of the
Certificateholders, or its nominee or custodian of such
book-entry securities; the making by such financial
intermediary of entries in its books and records identifying
such book-entry security held through the Federal Reserve
System pursuant to federal book-entry regulations as belonging
to the Trustee, as trustee for the benefit of the
Certificateholders, or its nominee, agent or custodian and
indicating that such custodian holds such Account Property
solely as agent for the Trustee, as trustee for the benefit of
the Certificateholders, or its nominee, agent or custodian;
and such additional or alternative procedures as may hereafter
become appropriate to effect complete transfer of ownership of
any such Account Property to the Trustee or its nominee, agent
or custodian, consistent with changes in applicable law or
regulations or the interpretation thereof; and
(c) with respect to any item of Account Property
that is an uncertificated security under Article 8 of the
Relevant UCC and that is not governed by clause (b) above,
registration on the books and records of the issuer thereof in
the name of the financial intermediary, the sending of a
confirmation by
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the financial intermediary of the purchase by the Trustee, as
trustee for the benefit of the Certificateholders, or its
nominee, agent or custodian of such uncertificated security,
and the making by such financial intermediary of entries on
its books and records identifying such uncertificated
certificates as belonging to the Trustee, as trustee for the
benefit of the Certificateholders, or its nominee, agent or
custodian.
"Deposit Date" means the Business Day preceding each
Distribution Date.
"Depositor" means NationsCredit Securitization Corporation, a
corporation organized under the laws of the State of Delaware, as the depositor
of the Depositor Receivables under the Agreement, and each successor to
NationsCredit Securitization Corporation (in the same capacity) pursuant to
Section 16.3.
"Depositor Receivables" means the marine retail installment
sales contracts listed on Schedule A-1 and all of the RV Receivables.
"Depositor Receivables Files" means the documents specified in
Section 12.3 that relate to Depositor Receivables.
"Depository Agreement" means the agreement among the
Depositor, the Trustee and the initial Clearing Agency, dated ___________,
1997, substantially in the form attached hereto as Exhibit C.
"Determination Date" means the earlier of the eighth Business
Day or the eleventh calendar day of each month.
"Distribution Date" means, for each Collection Period, the
15th of the following month, or if the 15th is not a Business Day, the next
following Business Day, commencing with the date specified in the Agreement.
"Event of Default" means an event specified in Section 18.1.
"Lien" means a security interest, lien, charge, pledge, equity
or encumbrance of any kind other than tax liens, mechanics' liens and any liens
which attach to the respective Receivable by operation of law.
"Liquidation Proceeds" means, with respect to any Collection
Period, the monies (including recoveries) collected from whatever source,
during such Collection Period on a Defaulted Marine Receivable or Defaulted RV
Receivable, as applicable, net of the sum of any amounts expended by the
Servicer for the account of the Obligor plus any amounts required by law to be
remitted to the Obligor.
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"Marine Available Funds" means, for any Distribution Date, the
sum of (i) all Marine Collections received by the Servicer during the related
Collection Period, (ii) all refunds received by the Servicer with respect to
any refunded portion of extended warranty protection plan costs, or of physical
damage, credit life or disability insurance premiums included in the Amount
Financed with respect to Marine Receivables unless such refund must be paid to
the Obligor, (iii) the Purchase Amount of all Marine Receivables purchased or
repurchased under the Agreement on the Business Day prior to the Distribution
Date, (iv) Liquidation Proceeds with respect to the Marine Receivables received
by the Servicer during the related Collection Period and (v) all net income and
gain realized on funds deposited into the Marine Collection Account or the
Marine Certificate Account and invested in Permitted Investments during the
related Collection Period.
"Marine Certificate" means a certificate executed by the Trust
and authenticated by the Trustee substantially in the form of Exhibit B-1
hereto.
"Marine Certificate Account" means the account designated as
such, established and maintained pursuant to Section 14.1(a).
"Marine Certificate Balance" means, as of any date of
determination, the Original Marine Certificate Balance, as specified in the
Agreement, reduced by all principal distributions on the Marine Certificates.
"Marine Certificate Factor" means, as of the close of business
on a Distribution Date, a seven-digit decimal figure equal to the Marine
Certificate Balance as of such Distribution Date divided by the Original Marine
Certificate Balance.
"Marine Collections" shall mean, with respect to a Collection
Period, all payments by or on behalf of the Obligors made during such
Collection Period other than Liquidation Proceeds on the Marine Receivables, as
applicable (other than a Purchased Receivable).
"Marine Collection Account" means the account designated as
such, established and maintained pursuant to Section 14.1(a).
"Marine Depositor Receivables" means the marine retail
installment sales contracts listed on Schedule A-1.
"Marine Distributions" shall have the meaning set forth in
Section 14.5(b).
"Marine NCMF Receivables" means the marine retail installment
sales contracts listed on Schedule B.
"Marine Pass--Through Rate" means the interest rate payable to
Marine Certificateholders, as specified in the Agreement.
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"Marine Pool Balance" means as the last day of any Collection
Period, the aggregate Principal Balance of the Marine Receivables. For
purposes of this definition only the Principal Balance of a Defaulted Marine
Receivable shall equal zero.
"Marine Priority Distributions" shall have the meaning set
forth in Section 14.5(a)(ii).
"Marine Receivables" means the Marine Depositor Receivables
and the Marine NCMF Receivables.
"Marine Reserve Account Initial Deposit" shall equal
$_________________.
"Marine Reserve Account Cross Collateral Withdrawal Amount"
shall have the meaning set forth in Section 14.5A(a)(iii).
"Marine Reserve Account Withdrawal Amount" shall have the
meaning set forth in Section 14.5(a)(ii).
"Marine Surety Drawing Amount" shall have the meaning set
forth in Section 14.5(a)(iv).
"Monthly Marine Interest Payment" means, as of any
Distribution Date, one-twelfth of the product of the Marine Pass--Through Rate
and the Marine Certificate Balance as of the close of business on the prior
Distribution Date or, in the case of the first Distribution Date, the Marine
Certificate Balance as of the Closing Date.
"Monthly Marine Servicing Fee" means the fee payable to the
Servicer for services rendered during each Collection Period, determined
pursuant to Section 13.8.
"Monthly Marine Principal Payment" means, (x) as of any
Distribution Date (except for the Final Scheduled Marine Distribution Date), an
amount equal to the sum of (i) that portion of all collections received by the
Servicer during the related Collection Period on Marine Receivables allocable
to principal (which shall not include the principal portion of proceeds from
any recoveries or liquidations in respect of any Defaulted Marine Receivable in
any Collection Period following the Collection Period in which such Marine
Receivable became a Defaulted Marine Receivable), (ii) Purchase Amounts with
respect to Marine Receivables allocable to principal and paid by the Depositor
to the Servicer or by the Servicer and (iii) the Principal Balance of Defaulted
Marine Receivables, which became Defaulted Marine Receivables during the
related Collection Period and (y) as of the Final Scheduled Marine Distribution
Date, after giving effect to the distribution of the amounts set forth in (i)
through (iii) of clause (x) above, an amount necessary to reduce the Marine
Certificate Balance to zero on such Distribution Date.
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"Monthly RV Interest Payment" means, as of any Distribution
Date, one-twelfth of the product of the RV Pass-Through Rate and the RV
Certificate Balance as of the close of business on the prior Distribution Date
or, in the case of the first Distribution Date, the RV Certificate Balance as
of the Closing Date.
"Monthly RV Principal Payment" means, (x) as of any
Distribution Date (except for the Final Scheduled RV Distribution Date), an
amount equal to the sum of (i) that portion of all collections received by the
Servicer during the related Collection Period on RV Receivables allocable to
principal (which shall not include the principal portion of proceeds from any
recoveries or liquidations in respect of any Defaulted RV Receivable in any
Collection Period following the Collection Period in which such RV Receivable
became a Defaulted RV Receivable), (ii) Purchase Amounts allocable to principal
and paid by the Depositor to the Servicer or by the Servicer and (iii) the
Principal Balance of Defaulted RV Receivables, which became Defaulted RV
Receivables during the related Collection Period and (y) as of the Final RV
Scheduled Distribution Date, after giving effect to the distribution of the
amounts set forth in (i) through (iii) of clause (x) above, an amount necessary
to reduce the RV Certificate Balance to zero on such Distribution Date.
"Monthly RV Servicing Fee" means the fee payable to the
Servicer for services rendered during each Collection Period, determined
pursuant to Section 13.8A.
"Moody's" means Xxxxx'x Investors Service, Inc.
"NationsCredit Commercial" means NationsCredit Commercial
Corporation of America, a corporation organized under the laws of North
Carolina, or its successors.
"NationsCredit Marine" means NationsCredit Marine Funding
Corporation, a Delaware corporation.
"NCMF Receivable Files" means the documents specified in
Section 12.3 that relate to NCMF Receivables.
"NCMF Receivables" means the marine retail installment sales
contracts listed on Schedule B.
"Obligor" on a Receivable means the purchaser or the
co-purchasers of the Boat or RV, as applicable, or any other Person who owes
payments under the related Receivable.
"Officer's Certificate" means a certificate signed by the
chairman of the board, the president, any vice chairman of the board, any vice
president, the treasurer, any assistant treasurer or the controller of the
Depositor, the Servicer or the Surety Bond Issuer, as appropriate.
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"Opinion of Counsel" means a written opinion of counsel who
may but need not be counsel to the Depositor or Servicer, which opinion shall
be acceptable to the Trustee, and provided that any opinion relating to the tax
status of the Trust shall be rendered by Stroock & Stroock & Xxxxx LLP or such
other independent outside counsel acceptable to the Trustee.
"Optional Purchase Percentage" means the percentage specified
as such in the Agreement.
"Original Certificate Balance" means the sum of the Original
Marine Certificate Balance and the Original RV Certificate Balance.
"Original Marine Certificate Balance" means the Marine
Certificate Balance as of the Closing Date, as specified in the Agreement.
"Original Marine Pool Balance" means the Pool Balance as of
the Cutoff Date, as specified in the Agreement.
"Original Pool Balance" means the sum of the Original Marine
Pool Balance and the Original RV Pool Balance.
"Original RV Certificate Balance" means the Certificate
Balance as of the Closing Date, as specified in the Agreement.
"Original RV Pool Balance" means the RV Pool Balance as of the
Cutoff Date, as specified in the Agreement.
"Permitted Investments" means those investments specified in
Schedule C of the Agreement.
"Person" means any individual, corporation, estate,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization, or government or any agency or political
subdivision thereof.
"Physical Property" has the meaning assigned to such term in
the definition of "Delivery" above.
"Pool Balance" means the sum of the Marine Pool Balance and
the RV Pool Balance.
"Precomputed Receivable" means any Receivable under which the
portion of a payment allocable to earned interest (which may be referred to in
the Receivable as an add-on finance charge) and the portion allocable to the
related Amount Financed is determined
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according to the sum of periodic balances or the sum of monthly balances or any
equivalent method or are monthly actuarial receivables.
"Principal Balance" of a Receivable, as of the last day of a
Collection Period, means the Amount Financed minus the sum of (a) that portion
of all Collections received on or prior to such day by the Servicer allocable
as a payment of principal pursuant to Section 14.3 hereof, (b) any refunded
portion of extended warranty protection plan costs, or of physical damage,
credit life or disability insurance premiums included in the Amount Financed
which is applied during the related Collection Period unless such refund must
be paid to the Obligor, and (c) the principal portion of all Purchase Amounts
paid by the Depositor or the Servicer, in respect of such Receivable, after the
preceding Distribution Date but prior to the related Distribution Date.
"Purchase Agreement" means the Purchase Agreement executed by
the Depositor and NationsCredit Commercial as of the Cutoff Date.
"Purchase Amount" means with respect to a Marine Receivable or
a RV Receivable the amount, as of the last day of a Collection Period, required
to prepay in full the Principal Balance of a Marine Receivable or a RV
Receivable, as applicable, plus accrued interest thereon at one-twelfth the sum
of the Marine Pass-Through Rate, in the case of the Marine Receivables or the
RV Pass--Through Rate, in the case of the RV Receivables plus the Servicing Fee
Rate to the last day of the month of purchase.
The "Purchase and Sale Agreement" means the Purchase and Sale
Agreement, dated December 18, 1996 between NationsCredit Commercial and
NationsCredit Marine.
"Purchased Receivable" means a Marine Receivable or a RV
Receivable purchased as of the last day of a Collection Period by the Servicer
pursuant to Section 13.7, or 20.2 or 20.2A or by the Depositor pursuant to
Section 12.2.
"Rating Agency" means S&P, Moody's or any other nationally
recognized rating agency initially contracted by the Depositor to rate the
Certificates.
"RCC" means Receivables Capital Corporation, a Delaware
corporation.
"Receivables" means the Depositor Receivables and the NCMF
Receivables.
"Receivables Files" means the Depositor Receivable Files and
the NCMF Receivable Files.
"Receivables Purchase Agreement" means the Receivables
Purchase Agreement, dated as of December 18, 1996 among NationsCredit Marine,
RCC, NationsCredit Commercial and Bank of America National Trust and Savings
Association, as Administrator.
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"Record Date" means for any Distribution Date the close of
business on the Business Day prior to such Distribution Date.
"Reimbursement Agreement" means the agreement relating to the
Surety Bond, which agreement is further defined in Section 6.1 of the
Agreement.
"Residual Certificate" means the Certificate specified in
Section 15.1.
"Required Deposit Rating" means the rating specified in
Section 6.1 of the Agreement.
"RV" means a new or used recreational vehicle securing an
Obligor's indebtedness under the respective RV Receivable.
"RV Available Funds" means, for any Distribution Date, the sum
of (i) all RV Collections received by the Servicer during the related
Collection Period, (ii) all refunds received by the Servicer with respect to
any refunded portion of extended warranty protection plan costs, or of physical
damage, credit life or disability insurance premiums included in the Amount
Financed with respect to the RV Receivables unless such refund must be paid to
the Obligor, (iii) the Purchase Amount of all RV Receivables purchased or
repurchased under the Agreement on the Business Day prior to the Distribution
Date, (iv) Liquidation Proceeds with respect to the RV Receivables received by
the Servicer during the related Collection Period and (v) all net income and
gain realized on funds deposited into the RV Collection Account or the RV
Certificate Account and invested in Permitted Investments during the related
Collection Period.
"RV Certificate" means a certificate executed by the Trust and
authenticated by the Trustee substantially in the form of Exhibit B-2 hereto.
"RV Certificate Account" means the account designated as
such, established and maintained pursuant to Section 14.1A(a).
"RV Certificate Balance" means, as of any date of
determination, the Original RV Certificate Balance, as specified in the
Agreement, reduced by all principal distributions on the RV Certificates.
"RV Certificate Factor" means, as of the close of business on
a Distribution Date, a seven-digit decimal figure equal to the RV Certificate
Balance as of such Distribution Date divided by the Original RV Certificate
Balance.
"RV Collections" means, with respect to a Collection Period,
all payments by or on behalf of the Obligors made during such Collection Period
other than Liquidation Proceeds on the RV Receivables, as applicable, (other
than a Purchased Receivable).
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"RV Collection Account" means the account designated as such,
established and maintained pursuant to Section 14.1A(a).
"RV Depositor Receivables" means the recreational vehicle
retail installment sale contracts listed on Schedule A-2.
"RV Pass--Through Rate" means the interest rate payable to RV
Certificateholders, as specified in the Agreement.
"RV Pool Balance" means as of the last day of any related
Collection Period, the aggregate Principal Balance of the RV Receivables. For
purposes of this definition only the Principal Balance of a Defaulted RV
Receivable shall equal zero.
"RV Priority Distributions" means the distributions to the RV
Certificateholders as set forth in Section 14.5A(ii).
"RV Receivables" means the RV Depositor Receivables.
"RV Reserve Account Initial Deposit" shall equal $
_________________.
"RV Reserve Account Cross Collateral Withdrawal Amount" shall
have the meaning set forth in Section 14.5(a)(iii).
"RV Reserve Account Withdrawal Amount" shall have the meaning
in Section 14.5A(a)(ii).
"RV Surety Drawing Amount" shall have the meaning set forth in
Section 14.5A(a)(iv).
"Scheduled Payment" on a Receivable means that portion of the
payment required to be made by the Obligor on the related due date during the
respective Collection Period sufficient to amortize at level monthly payments
the Principal Balance and to provide interest at the APR.
"Servicer" means NationsCredit Commercial and each successor
to NationsCredit Commercial (in the same capacity) pursuant to Section 17.3.
"Servicer's Certificate" means a certificate completed and
executed by the Servicer by its chairman of the board, its president, any vice
chairman of the board, any vice president, the treasurer, any assistant
treasurer or the controller of the Servicer pursuant to Section 13.9,
substantially in the form of Exhibit D.
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"Servicing Standards" means, at any time, the quality of the
Servicer's (or in the event that a subservicer performs servicing operations on
behalf of the Servicer, such subservicer's) performance with respect to (i)
compliance with the terms and conditions of the Agreement, and (ii) adequacy,
measured in accordance with industry standards and current and historical
standards of the Servicer (or such subservicer) in respect of all receivables
serviced by the Servicer (or such subservicer), regardless of whether such
receivables are owned by the Servicer (or such subservicer), of the Servicer's
(or such subservicer's) servicing of the Receivables.
"Ship Mortgage Act" means the Ship Mortgage Act of 1920, as
amended.
"Simple Interest Method" means the method of allocating a
fixed level payment to principal and interest, pursuant to which the portion of
such payment that is allocated to interest is equal to the product of the fixed
rate of interest multiplied by the unpaid principal balance multiplied by the
number of days elapsed since the preceding payment of interest was made.
"Simple Interest Receivable" means any Receivable under which
the portion of a payment allocable to interest and the portion allocable to
principal is determined in accordance with the Simple Interest Method.
"Specified Marine Reserve Account Requirement" with respect to
any Distribution Date, shall equal the greater of (i) $___________, or (ii) __%
of the Marine Pool Balance as of the last day of the related Collection Period.
The Specified Marine Reserve Account Requirement may be reduced without the
consent of the Marine Certificateholders to a lesser amount, including to zero,
as determined by the Depositor; provided that such reduction is consented to in
writing by the Surety Bond Issuer and does not adversely affect the rating of
the Marine Certificates assigned by any Rating Agency. Upon the occurrence and
continuance of the event specified in Section 18.1(b)(iv), the Specified Marine
Reserve Account Requirement shall equal the sum of the Marine Certificate
Balance, accrued interest thereon and the Monthly Marine Servicing Fee and any
Carry-Over Monthly Marine Servicing Fee payable pursuant to Section 14.5 (b)
(ii) and all amounts available under Section 14.5(b)(ii) shall be deposited in
the Marine Reserve Account up to such amount.
"Specified RV Reserve Account Requirement" with respect to any
Distribution Date, shall equal the greater of (i) $___________, or (ii) __% of
the RV Pool Balance as of the last day of the related Collection Period. The
Specified RV Reserve Account Requirement may be reduced without the consent of
the RV Certificateholders to a lesser amount, including to zero, as determined
by the Depositor; provided that such reduction is consented to in writing by
the Surety Bond Issuer and does not adversely affect the rating of the RV
Certificates assigned by any Rating Agency. Upon the occurrence and
continuance of the event specified in Section 18.1(b)(iv), the Specified RV
Reserve Account Requirement shall equal the sum of the RV Certificate Balance,
accrued interest thereon and the Monthly RV Servicing Fee and any Carry-Over
Monthly RV Servicing Fee payable pursuant to Section 14.5A(b) (ii) and all
amounts
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available under Section 14.5A(b)(xii) shall be deposited in the RV Reserve
Account up to such amount.
"S&P" means Standard & Poor's Ratings Services, a Division of
The XxXxxx-Xxxx Companies.
"State" means any state of the United States of America or the
District of Columbia.
"Statement to Certificateholders" means a certificate
completed and executed by the Servicer by its the chairman of the board, its
president, any vice chairman of the board, any vice president, the treasurer,
any assistant treasurer or the controller of the Servicer pursuant to Section
14.7, substantially in the form of Exhibit E.
"Surety Bond" means the unconditional, irrevocable surety bond
designated as such in the Agreement.
"Surety Bond Issuer" means the Person specified as such in
Section 6.1 of the Agreement.
"Surety Bond Issuer Default" means the failure of the Surety
Bond Issuer to make a payment required under the Surety Bond in accordance with
its terms.
"Trust" means the trust created by the Agreement, the estate
of which shall consist of (i) the Receivables (other than Purchased
Receivables), and all payments received in the case of Simple Interest
Receivables and all payments due thereunder, in the case of Precomputed
Receivables, in each case, after the Cutoff Date; (ii) funds deposited into the
Marine Collection Account and the RV Collection Account or the Marine
Certificate Account and the RV Certificate Account; (iii) any interest of the
Depositor in the security interests in the Boats and RVs granted by the
Obligors or NationsCredit Marine in the security interests in the Boats granted
by the Obligors; (iv) the Surety Bond; (v) the Purchase Agreement; (vi) the
right of NationsCredit Marine pursuant to the Purchase and Sale Agreement to
cause NationsCredit Commercial to repurchase NCMF Receivables as a result of a
breach of representations and warranties contained in paragraph (h) or (i) of
Exhibit III of the Purchase and Sale Agreement; provided that paragraph (i)
shall be limited to paragraphs (iii), (iv), (xiii) and (xxiii) of the
definition of "Eligible Receivables" (as such term is defined in the Purchase
and Sale Agreement); (vii) any interest of the Depositor in any proceeds from
claims on physical damage, credit life or disability insurance policies
covering the Boats and RVs or NationsCredit Marine in any proceeds from claims
on physical damage, credit life or disability insurance policies covering the
Boats or the Obligors, as the case may be; (viii) any property (including the
right to receive future Liquidation Proceeds) that shall have secured a
Receivable and that shall have been acquired by or on the behalf of the
Trustee; and (ix) the proceeds of all of the foregoing.
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"Trustee" means the Person acting as Trustee under the
Agreement, its successor in interest, and any successor trustee pursuant to
Section 19.11.
"Trustee Officer" means any officer assigned to the Corporate
Trust Office, including any managing director, vice president, any assistant
vice president, any assistant secretary, any assistant treasurer, any trust
officer or any other officer of the Corporate Trust Office of the Trustee
customarily performing functions similar to those performed by persons who at
the time shall be such officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Trustee's Certificate" means a certificate completed and
executed by the Trustee by a Trustee Officer pursuant to Section 19.2,
substantially in the form of, in the case of an assignment to the Depositor,
Exhibit F-1, and in the case of an assignment to the Servicer, Exhibit F-2.
"UCC" means the Uniform Commercial Code as in effect in the
respective jurisdiction.
"Unsold Contract" means any retail installment contract
serviced by NationsCredit Commercial other than the Marine Receivables or the
RV Receivables.
SECTION 11.2. Usage of Terms. With respect to all terms in
the Agreement, the singular includes the plural and the plural the singular;
words importing any gender include the other gender; references to "writing"
include printing, typing, lithography and other means of reproducing words in a
visible form; references to agreements and other contractual instruments
include all subsequent amendments thereto or changes therein entered into in
accordance with their respective terms and not prohibited by the Agreement;
references to Persons include their permitted successors and assigns; and the
term "including" means "including without limitation."
SECTION 11.3. Cutoff Date and Record Date. All references to
the Record Date prior to the first Record Date in the life of the Trust shall
be to the Cutoff Date.
SECTION 11.4. Section References. All section references
shall be to Sections in these Standard Terms and Conditions of Agreement.
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ARTICLE XII
The Receivables
SECTION 12.1. Representations and Warranties of Depositor.
The Depositor makes the following representations and warranties as to the
Depositor Receivables on which the Trustee relies in accepting the Depositor
Receivables in trust and executing and authenticating the Certificates. Such
representations and warranties speak as of the Closing Date, but shall survive
the sale, transfer and assignment of the Depositor Receivables to the Trustee.
(i) Characteristics of Depositor Receivables.
Each Depositor Receivable (a) shall have been originated in
the United States by a Dealer for the retail sale of a Boat or
RV in the ordinary course of such Dealer's business, shall
have been fully and properly executed by the parties thereto,
shall be denominated in U.S. dollars, (b) shall have created
or shall create a valid, subsisting and enforceable first
priority perfected security interest in favor of NationsCredit
Commercial in the related Boat or RV, as applicable (other
than in the case of boat motors subject to certificate of
title statutes that provide for perfection of the security
interests in such boat motors by the filing of a UCC-1
financing statement), which security interest has been
assigned to the Depositor and shall be validly assignable by
the Depositor to the Trustee, (c) shall contain customary and
enforceable provisions such that the rights and remedies of
the holder thereof shall be adequate for realization against
the collateral of the benefits of the security, (d) shall
provide for level monthly payments (provided that the payment
in the first or last month in the life of the Receivable may
be minimally different from the level payment) that fully
amortize the Amount Financed by maturity and yield interest at
the Annual Percentage Rate, and (e) shall provide for, in the
event that such contract is prepaid, a prepayment that fully
pays the Principal Balance and includes any accrued but unpaid
interest due pursuant to the terms of the related contract
through the date of prepayment in an amount at least equal to
the Annual Percentage Rate.
(ii) Schedule of Depositor Receivables. The
information set forth in Schedule A to the Agreement shall be
true and correct in all material respects as of the close of
business on the Cutoff Date, and no selection procedures
believed to be adverse to the Certificateholders shall have
been utilized in selecting the Depositor Receivables.
(iii) Compliance with Law. Each Depositor
Receivable and the sale of the related Boat or RV, as
applicable, shall have complied at the time it was originated
or made, and at the date of issuance of the Certificates shall
comply, in all material respects with all requirements of
applicable Federal, State, and local laws and regulations
thereunder, including, without limitation, usury laws, the
Federal Truth-in-Lending Act, the Equal Credit Opportunity
Act, the Federal
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Trade Commission Act, the Fair Credit Billing Act, the Fair
Credit Reporting Act, the Fair Debt Collection Practices Act,
the Xxxxxxxx-Xxxx Warranty Act, the Federal Trade Commission
Credit Practices Rule, State unfair and deceptive trade
practice laws, and State adaptations of the National Consumer
Act and of the Uniform Consumer Credit Code, and any other
applicable consumer credit, equal credit opportunity and
disclosure laws.
(iv) Binding Obligation. Each Depositor
Receivable shall represent the genuine, legal, valid and
binding payment obligation in writing of the Obligor,
enforceable by the holder thereof 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.
(v) No Government Obligor. None of the Depositor
Receivables shall be due from the United States of America or
any State or local government or from any agency, department
or instrumentality of the United States of America, any State
or local government.
(vi) Depositor Receivables in Force. No Depositor
Receivable shall have been satisfied, subordinated or
rescinded, nor shall any Boat or RV, as applicable, have been
released from the security interest granted by the related
Depositor Receivable in whole or in part.
(vii) No Waiver. No provision of a Depositor
Receivable shall have been waived.
(viii) No Defenses. Except for the security
interests in favor of the Depositor and the Trustee, the
Depositor Receivables are free and clear of all security
interests, liens, charges, and encumbrances and to the best
knowledge of the Depositor no right of rescission, setoff,
counterclaim or defense shall have been asserted or threatened
with respect to any Depositor Receivable.
(ix) No Liens. No liens or claims shall have been
filed for work, labor or materials relating to a Boat or RV,
as applicable, that shall be liens prior to, or equal to the
security interest in the Boat or RV, as applicable, granted by
the Depositor Receivable.
(x) Insurance. The Obligor has obtained physical
damage insurance covering the Boat or RV, as applicable, and
the Obligor is required under the terms of the Depositor
Receivable to maintain such insurance.
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(xi) Title. It is the intention of the Depositor
that the sale and assignment herein contemplated constitute a
sale of the Depositor Receivables from the Depositor to the
Trust and that the beneficial interest in and title to the
Depositor Receivables not be part of the debtor's estate in
the event of the filing of a bankruptcy petition by or against
the Depositor under any bankruptcy law. No Depositor
Receivable has been sold, transferred, assigned or pledged by
the Depositor to any Person other than the Trustee.
Immediately prior to the sale and assignment herein
contemplated, the Depositor had good and marketable title to
each Depositor Receivable free and clear of all Liens, and,
immediately upon the sale and assignment contemplated hereby,
the Trustee for the benefit of the Certificateholders and the
Surety Bond Issuer shall have good and marketable title to
each Depositor Receivable, free and clear of all Liens,
encumbrances, security interests and rights of others; and the
sale and assignment has been perfected under the UCC.
(xiii) Lawful Assignment. No Depositor Receivable
shall have been originated in, or shall be subject to the laws
of any jurisdiction under which the sale, transfer and
assignment of such Depositor Receivable under the Agreement or
pursuant to transfers of the Certificates shall be unlawful,
void or voidable.
(xiv) Security Interest. Upon the Depositor
Receivables being conveyed to the Trust pursuant to Section
2.1(a) of the Agreement, the Trust shall have a perfected
security interest under the UCC in the Depositor Receivables.
(xv) One Original. There shall be in existence
one, and only one, original executed copy of each Depositor
Receivable.
(xvi) UCC Characterization. Each Depositor
Receivable constitutes "Chattel Paper" under the UCC.
(xvii) Ship Mortgage Act. No Boat related to any
Depositor Receivable which is a Marine Receivable shall be
required to be documented under the Ship Mortgage Act.
(xviii) No Default. Except for payment defaults
continuing for a period of less than 60 days as of the Cutoff
Date, no default, breach, violation or event permitting
acceleration under the terms of any Depositor Receivable shall
have occurred and neither NationsCredit Commercial nor the
Depositor shall have waived any of the foregoing.
SECTION 12.2. Repurchase Upon Breach. The Depositor or the
Servicer, as the case may be, shall inform the other parties and the Trustee
promptly, in writing, upon the discovery of any breach of the Depositor's
representations and warranties pursuant to Section
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12.1. Unless the breach shall have been cured by the second Record Date
following the discovery, the Depositor shall repurchase any Depositor
Receivable, which as a result of such breach would materially and adversely
affect the interests of the Certificateholders or the Surety Bond Issuer, as of
such Record Date (or, at the Depositor's option, the first Record Date
following the discovery). In consideration of the purchase of the Depositor
Receivables, the Depositor shall remit the Purchase Amount in the manner
specified in Section 14.4(a) on the Deposit Date. The sole remedy of the
Trustee, the Trust or the Certificateholders with respect to a breach of the
Depositor's representations and warranties pursuant to Section 12.1 shall be to
require the Depositor to repurchase Depositor Receivables pursuant to this
Section 12.2.
SECTION 12.3. Custody of Receivable Files. To assure uniform
quality in servicing the Receivables and to reduce administrative costs, the
Trustee, on behalf of the Trust, upon the execution and delivery of the
Agreement, hereby revocably appoints the Servicer, and the Servicer hereby
accepts such appointment, to act as the agent of the Trustee as custodian of
the following documents or instruments which are hereby constructively
delivered to the Trust on behalf of the Trust, with respect to each Receivable:
(i) The original of the Receivable fully executed
by the Obligor.
(ii) The original credit application fully
executed by the Obligor.
(iii) The original certificate of title or such
documents that the Servicer or the Depositor shall keep on
file, in accordance with its customary procedures, evidencing
the security interest of NationsCredit Commercial in the Boat
or RV, as applicable.
(iv) Any and all other documents that the Servicer
shall keep on file, in accordance with its customary
procedures, relating to a Receivable, an Obligor or a Boat or
RV, as applicable.
The Trustee shall have no duty to monitor the performance of
the Servicer and shall have no liability in connection with the Servicer's
performance hereunder.
SECTION 12.4. Duties of Servicer as Custodian. (a)
Safekeeping. The Servicer shall hold the Receivable Files on behalf of the
Trust for the use and benefit of all Certificateholders and the Surety Bond
Issuer, and maintain such accurate and complete accounts, records and computer
systems pertaining to each Receivable File as shall enable the Servicer to
comply with these Standard Terms and Conditions of Agreement. In performing
its duties as custodian the Servicer shall act with reasonable care, using that
degree of skill and attention that the Servicer exercises with respect to the
receivable files relating to all comparable receivables that the Servicer
services for itself or others. The Servicer shall conduct, or cause to be
conducted, periodic audits of the Receivable Files held by it under the
Agreement, and of the related accounts, records and computer systems, in such a
manner as would enable the Trustee to
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verify the accuracy of the Servicer's record keeping. The Servicer shall
promptly report to the Trustee any failure on its part to hold the Receivable
Files and maintain its accounts, records and computer systems as herein
provided and promptly take appropriate action to remedy any such failure.
Nothing herein shall be deemed to require an initial review or any periodic
review by the Trustee of the Receivable Files.
(b) Maintenance of and Access to Records. The Servicer
shall maintain each Receivable File at one of its offices specified in Section
7.1(iv) of the Agreement, or at such other office as shall be specified to the
Trustee by written notice not later than 90 days after any change in location.
The Servicer shall make available to the Trustee or its duly authorized
representatives, attorneys or auditors a list of locations of the Receivable
Files, and shall also so make available the Receivable Files themselves, and
the related accounts, records and computer systems maintained by the Servicer,
at such times as the Trustee shall reasonably instruct.
(c) Release of Documents. Upon instruction from the
Trustee, the Servicer shall release any Receivable File to the Trustee, the
Trustee's agent or the Trustee's designee, as the case may be, at such place or
places as the Trustee may designate, as soon as practicable.
SECTION 12.5. Instructions; Authority to Act. The Servicer
shall be deemed to have received proper instructions with respect to the
Receivable Files upon its receipt of written instructions signed by a Trustee
Officer.
SECTION 12.6. Custodian's Indemnification. The Servicer as
custodian shall indemnify the Trustee (which shall include for purposes of this
section it directors, officers, employees and agents) for any and all
liabilities, obligations, losses, compensatory damages, payments, costs or
expenses of any kind whatsoever that may be imposed on, incurred or asserted
against the Trustee as the result of any improper act or omission in any way
relating to the maintenance and custody by the Servicer as custodian of the
Receivable Files; provided, however, that the Servicer shall not be liable for
any portion of any such amount resulting from the willful misfeasance, bad
faith or negligence of the Trustee. This indemnity shall survive the
termination of this Agreement and the resignation and removal of the Trustee.
SECTION 12.7. Effective Period and Termination. The
Servicer's appointment as custodian shall become effective as of the Cutoff
Date and shall continue in full force and effect until terminated pursuant to
this Section 12.7. If NationsCredit Commercial shall resign as Servicer in
accordance with the provisions of the Agreement or if all the rights and
obligations of the Servicer shall have been terminated under Section 18.1, the
appointment of the Servicer as custodian may be terminated by the Surety Bond
Issuer, in the same manner as the Surety Bond Issuer may terminate the rights
and obligations of the Servicer under Section 18.1. The Trustee shall, if
required by the Surety Bond Issuer following the occurrence and during the
continuation of an Event of Default or the Trustee, on behalf of the Trust, may
terminate the Servicer's appointment as custodian, with cause or as required by
law at any time upon written notification to the Servicer. As soon as
practicable after any termination of such appointment, the Servicer
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shall deliver the Receivable Files to the Trustee or the Trustee's agent at
such place or places as the Trustee may reasonably designate.
ARTICLE XIII
Administration and Servicing of Receivables
SECTION 13.1. Duties of Servicer. The Servicer shall manage,
service, administer and make collections on the Receivables (other than
Purchased Receivables) with reasonable care, using that degree of skill and
attention that the Servicer exercises with respect to all comparable
receivables that it services for itself or others. The Servicer's duties shall
include collection and posting of all payments, responding to inquiries of
Obligors on such Receivables, investigating delinquencies, sending payment
statements to Obligors, reporting tax information to Obligors, accounting for
collections and furnishing monthly and annual statements to the Trustee with
respect to distributions. The Servicer shall follow its customary standards,
policies and procedures in performing its duties as Servicer. Without limiting
the generality of the foregoing, the Servicer is authorized and empowered by
the Trustee to execute and deliver, on behalf of itself, the Trust, the
Certificateholders, or the Trustee or any of them, any and all instruments of
satisfaction or cancellation, or partial or full release or discharge, and all
other comparable instruments, with respect to such Receivables or to the Boats
or RVs, as applicable, securing such Receivables. If the Servicer shall
commence a legal proceeding to enforce a Receivable, the Trustee (in the case
of a Receivable other than a Purchased Receivable) shall thereupon be deemed to
have automatically assigned, solely for the purpose of collection on behalf of
the party retaining an interest in such Receivable, such Receivable to the
Servicer. If in any enforcement suit or legal proceeding it shall be held that
the Servicer may not enforce a Receivable on the ground that it shall not be a
real party in interest or a holder entitled to enforce the Receivable, the
Trustee shall, at the Servicer's expense and direction, take steps to enforce
the Receivable, including bringing suit in its name or the name of the
Certificateholders or the Surety Bond Issuer. To enable the Servicer to carry
out its servicing and administrative duties hereunder, the Trustee hereby
irrevocably appoints the Servicer as its attorney-in-fact, such appointment
being coupled with an interest, to execute on its behalf such documents or
instruments as are necessary to accomplish the foregoing.
SECTION 13.2. Collection of Receivables Payments. The
Servicer shall make reasonable efforts to collect all payments called for under
the terms and provisions of the Receivables as and when the same shall become
due and shall follow such collection procedures as it follows with respect to
all comparable receivables that it services for itself or others. The Servicer
may grant extensions, rebates or adjustments on a Receivable subject to the
provisions of Section 13.6. The Servicer may in its discretion waive any late
payment charge or any other fees that may be collected in the ordinary course
of servicing a Receivable.
SECTION 13.3. Realization Upon Receivables. On behalf of the
Trust, the Servicer shall use its best efforts, consistent with its customary
servicing procedures, to repossess or otherwise convert the ownership of the
Boat or RV, as applicable, securing any Receivable as
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to which the Servicer shall have determined eventual payment in full is
unlikely. The Servicer shall follow such customary and usual practices and
procedures as it shall deem necessary or advisable in its servicing of marine
receivables and recreational vehicle receivables, which may include reasonable
efforts to realize upon any recourse to Dealers and selling the Boat or RV, as
applicable, at public or private sale. The foregoing shall be subject to the
provision that, in any case in which the Boat or RV, as applicable, shall have
suffered damage, the Servicer shall not expend funds in connection with the
repair or the repossession of such Boat or RV, as applicable, unless it shall
determine in its discretion that such repair and/or repossession will increase
the related Liquidation Proceeds by an amount greater than the amount of such
expenses.
SECTION 13.4. Physical Damage Insurance. The Servicer, in
accordance with its customary servicing procedures, shall require that each
Obligor shall have obtained physical damage insurance covering the related Boat
or RV, as applicable, as of the date of execution of the related Receivable.
SECTION 13.5. Maintenance of Security Interests in Boats and
RVs . Subject to Article X of the Agreement, the Servicer shall, in accordance
with its customary servicing procedures, take such steps as are necessary to
maintain perfection of NationsCredit Commercial's security interest created by
each Receivable in the related Boat or RV, as applicable. The Trustee, on
behalf of the Trust, hereby authorizes the Servicer to take such steps as are
necessary to perfect such security interest on behalf of the Trust in the event
of the relocation of a Boat or RV, as applicable, or for any other reason.
SECTION 13.6. Covenants of Servicer. The Servicer shall make
within the required time periods under the UCC all filings necessary in any
jurisdiction to give the Trustee a first priority perfected ownership interest
in the Receivables. The Servicer shall not release the Boat or RV, as
applicable, securing each Receivable from the security interest granted by such
Receivable in whole or in part except in the event of payment in full by the
Obligor thereunder. The Servicer shall not impair the rights of the
Certificateholders in any Receivable. The Servicer shall make reasonable
efforts to collect all payments called for under the terms and provisions of
the Receivables as and when the same shall become due and shall follow such
collection procedures as it follows with respect to all comparable marine
receivables or recreational vehicle receivables that it services for itself and
others. The Servicer shall not sell, pledge, transfer, deliver or otherwise
dispose of any Receivable, except as provided in the Agreement. The Servicer
will not increase or decrease the number or amount of any Scheduled Payment, or
the Principal Balance of a Receivable (except with respect to a prepayment of a
Scheduled Payment that does not result in a deferral of any other Scheduled
Payment) or the APR of a Receivable, or extend, rewrite or otherwise modify the
payment terms of a Receivable; provided, however, that the Servicer may extend
a Receivable for credit related reasons that would be acceptable to the
Servicer with respect to comparable marine receivables or recreational vehicle
receivables, as applicable, that it services for itself and others and in
accordance with its customary standards, policies and procedures if the
cumulative extensions with respect to any Receivable shall not cause the term
of such Receivable to extend beyond the last day of the Collection Period which
is
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related to the Final Scheduled Marine Distribution Date or Final Scheduled RV
Distribution Date, as applicable; provided, further, that such extensions will
not be made if, in the reasonable opinion of the Servicer, the extensions would
modify the terms of such Receivable in such a manner as to constitute a
cancellation of such Receivable and the creation of a new receivable for
federal income tax purposes. In the event that the Servicer fails to comply
with the provisions of the preceding sentence or with respect to the second
proviso of the preceding sentence, notwithstanding having acted according to
its reasonable opinion, or if there is a final determination that the Servicer
has modified the terms of a Receivable in such a manner as to constitute a
cancellation of such Receivable and the creation of a new Receivable for
federal income tax purposes, the Servicer shall be required to purchase the
Receivable or Receivables affected thereby, for the Purchase Amount, in the
manner specified in Section 13.7 as of the first day of the Collection Period
following the Collection Period in which such failure occurs.
SECTION 13.7. Purchase of Receivables Upon Breach. The
Servicer or the Trustee shall inform the other party promptly, in writing, upon
the discovery (or, in the case of the Trustee, receipt of written notice by a
Trust Officer) of any breach pursuant to Section 13.6 or Section 13.15. Notice
of any breach pursuant to Section 13.6 or Section 13.15 may be given to the
Servicer and the Trustee by the Surety Bond Issuer. Unless the breach shall
have been cured by the second Record Date following such discovery (or, at the
Servicer's election, the first following Record Date), the Servicer shall
purchase any Receivable (or in the case of any representation and warranty set
forth in clause (xiv) of Section 13.15, the Servicer shall purchase Receivables
such that, after giving effect to such purchase, such representation and
warranty or covenant would be complied with), which as a result of such breach
would materially and adversely affect the interests of the Certificateholders
or the Surety Bond Issuer, as of such Record Date. In consideration of the
purchase of such Receivable, the Servicer shall remit the Purchase Amount in
the manner specified in Section 14.4 on the Deposit Date. The sole remedy of
the Trustee, the Trust or the Certificateholders with respect to a breach
pursuant to Section 13.6 or Section 13.15 shall be to require the Servicer to
repurchase Receivables pursuant to this Section 13.7.
SECTION 13.8. Marine Monthly Servicing Fee. The Monthly
Marine Servicing Fee for a Collection Period shall equal the product of one
twelfth times the Servicing Fee Rate times the Original Marine Pool Balance, in
the case of the initial Collection Period, and thereafter, the Marine Pool
Balance as of the last day of the prior Collection Period (except that in the
case of a successor Servicer, the Monthly Marine Servicing Fee shall equal such
amount as is arranged in accordance with Section 18.2). The Servicer shall
also be entitled to all late payment and extension fees, prepayment charges and
other administrative fees or similar charges allowed by applicable law with
respect to Marine Receivables, collected (from whatever source) on the Marine
Receivables; provided, however, such late payment and other fees shall not form
a part of the Monthly Marine Servicing Fee and the Servicer shall be entitled
to such fees as and when collected.
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SECTION 13.8A. Monthly RV Servicing Fee. The Monthly RV
Servicing Fee for a Collection Period shall equal the product of one twelfth
times the Servicing Fee Rate times the Original RV Pool Balance, in the case of
the initial Collection Period, and thereafter, the RV Pool Balance as of the
last day of the prior Collection Period (except that in the case of a successor
Servicer, the Monthly RV Servicing Fee shall equal such amount as is arranged
in accordance with Section 18.2). The Servicer shall also be entitled to all
late payment and extension fees, prepayment charges and other administrative
fees or similar charges allowed by applicable law with respect to RV
Receivables, collected (from whatever source) on the RV Receivables; provided,
however, such late payment and other fees shall not form a part of the Monthly
RV Servicing Fee and the Servicer shall be entitled to such fees as and when
collected.
SECTION 13.9. Servicer's Certificate. On or before 10:00
a.m. New York time on the Determination Date, the Servicer shall deliver to the
Trustee and the Surety Bond Provider a Servicer's Certificate, containing all
information necessary to make the transfers and distributions pursuant to
Section 14.5 for the Collection Period immediately preceding the date of such
Servicer's Certificate. If on any Deposit Date there is a default by the
Depositor or the Servicer in respect of any Purchase Amounts to be deposited
into the Marine Collection Account or RV Collection Account pursuant to Section
14.4 hereof, the Servicer shall recalculate all of the amounts described in the
Servicer's Certificate to reflect such default and deliver to the Trustee a
revised Servicer's Certificate reflecting such recalculations on such Deposit
Date.
SECTION 13.10. Annual Statement as to Compliance; Notice of
Default. (a) The Servicer shall deliver to the Trustee and the Surety Bond
Issuer, on or before March 31 of each year, beginning March 31, 1998, an
Officer's Certificate, dated as of December 31 of the preceding year, stating
that (i) a review of the activities of the Servicer during the preceding
12-month period (or such shorter period from the date of initial issuance of
the Certificates to December 31 of such year) and of its performance under the
Agreement has been made under such officer's supervision and (ii) to the best
of such officer's knowledge, based on such review, the Servicer has fulfilled
all its obligations under the Agreement throughout such year (or such shorter
period, as the case may be), or, if there has been a default in the fulfillment
of any such obligation, specifying each such default known to such officer and
the nature and status thereof. A copy of such certificate and the report
referred to in Section 13.11 may be obtained by any Certificateholder by a
request in writing to the Trustee addressed to the Corporate Trust Office.
(b) The Servicer shall deliver to the Trustee and the
Surety Bond Issuer promptly after having obtained knowledge thereof, but in no
event later than 5 Business Days thereafter, written notice in an Officer's
Certificate of any event which with the giving of notice or lapse of time, or
both, would become an Event of Default under clause (i) or (ii) of Section
18.1. The Depositor shall deliver to the Trustee and the Surety Bond Issuer
promptly after having obtained knowledge thereof, but in no event later than 5
Business Days thereafter, written notice in an Officer's Certificate of any
event which with the giving of notice or lapse of time, or both, would become
an Event of Default under clause (ii) of Section 18.1.
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SECTION 13.11. Annual Independent Certified Public
Accountant's Report. The Servicer shall cause a firm of independent certified
public accountants (who may also render other services to the Servicer and the
Depositor) to deliver to the Trustee on or before March 31 of each year
commencing March 31, 1998, a report to the effect that such firm has conducted
an examination, substantially in compliance with attestation standards
established by the American Institute of Certified Public Accountants, of
certain documents and records relating to the servicing procedures under this
Agreement and that, on the basis of such examination, such firm is of the
opinion that such servicing was conducted in compliance with the sections of
this Agreement with which independent public accountants generally possess
adequate professional knowledge and which are reasonably subject to positive
assurance by them, except for such exceptions as they believe to be immaterial
and such other exceptions as shall be set forth in such report. In the event
such firm requires Trustee to agree to the procedures performed by such firm,
Servicer shall direct Trustee in writing to so agree; it being understood and
agreed that Trustee will deliver such letter of agreement in conclusive
reliance upon the direction of Servicer, and Trustee makes no independent
inquiry or investigation as to, and shall have no obligation or liability in
respect of, the sufficiency, validity or correctness of such procedures.
SECTION 13.12. Access to Certain Documentation and
Information Regarding Receivables. The Servicer shall provide to the
Certificateholders access to the Receivables Files in such cases where the
Certificateholder shall be required by applicable statutes or regulations to
review such documentation. Access shall be afforded without charge, but only
upon reasonable request and during the normal business hours at the respective
offices of the Servicer. Nothing in this Section 13.12 shall affect the
obligation of the Servicer to observe any applicable law prohibiting disclosure
of information regarding the Obligors, and the failure of the Servicer to
provide access to information as a result of such obligation shall not
constitute a breach of this Section 13.12.
SECTION 13.13. Servicer Expenses. The Servicer shall be
required to pay all expenses incurred by it in connection with its activities
hereunder, including fees and disbursements of independent accountants, taxes
imposed on the Servicer and expenses incurred in connection with distributions
and reports to Certificateholders.
SECTION 13.14. Appointment of Sub-servicer. The Servicer may
at any time appoint a sub-servicer to perform all or any portion of its
obligations as Servicer hereunder; provided however, that the Servicer shall
remain obligated and be liable to the Trustee and the Certificateholders for
the servicing and administering of the Receivables in accordance with the
provisions hereof without diminution of such obligation and liability by virtue
of the appointment of such sub-servicer and to the same extent and under the
same terms and conditions as if the Servicer alone were servicing and
administering the Receivables. The fees and expenses of the sub-servicer shall
be as agreed between the Servicer and its sub-servicer from time to time and
neither the Trust, the Trustee nor the Certificateholders shall have any
responsibility therefor.
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SECTION 13.15. Representations and Warranties of the Servicer
with respect to the Receivables. The Servicer does hereby make the following
representations and warranties on which the Trustee, on behalf of the Trust,
relies in accepting the Receivables pursuant to this Agreement and the
Assignment and executing and authenticating the Certificates. Such
representations and warranties speak as of the Closing Date, but shall survive
the sale, transfer and assignment of the Receivables to the Trustee on behalf
of the Trust and any termination of the Servicer pursuant to Section 18.1.
(i) Characteristics of NCMF Receivables. Each
NCMF Receivable (a) shall be denominated in U.S. dollars, (b)
shall have an original maturity of not more than 180 months,
(c) as of the Cutoff Date, shall have a remaining maturity of
not more than 180 months, (d) shall contain customary and
enforceable provisions such that the rights and remedies of
the holder thereof shall be adequate for realization against
the collateral of the benefits of the security, (e) shall be
kept at the offices of NationsCredit Commercial at 0000
Xxxxxxxx Xxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx 00000 and at 0000
Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxx 00000,
(f) shall be adequate for realization against the collateral
of the benefits of the security, (g) shall provide for level
monthly payments (provided that the payment in the first or
last month in the life of the Marine Receivable may be
minimally different from the level payment) that fully
amortize the Amount Financed by maturity and yield interest at
the Annual Percentage Rate, and (h) shall provide for, in the
event that such contract is prepaid, a prepayment that fully
pays the Principal Balance and includes accrued but unpaid
interest due through the date of prepayment in an amount at
least equal to the Annual Percentage Rate.
(ii) Schedule of NCMF Receivables. The
information set forth in Schedule B to the Agreement shall be
true and correct in all material respects as of the close of
business on the Cutoff Date, and no selection procedures
believed to be adverse to the Certificateholders shall have
been utilized in selecting the NCMF Receivables.
(iii) No Government Obligor. None of the NCMF
Receivables shall be due from the United States of America or
any State or local government or from any agency, department
or instrumentality of the United States of America, any State
or local government.
(iv) NCMF Receivables in Force. No NCMF
Receivable shall have been satisfied, subordinated or
rescinded, nor shall any Boat have been released from the
security interests granted by the related NCMF Receivable in
whole or in part.
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(v) No Waiver. No provision of a NCMF Receivable
shall have been waived.
(vi) No Defenses. Immediately following the
conveyance of the NCMF Receivables pursuant to the Assignment,
except for the security interests in favor of the Depositor
and the Trustee, the NCMF Receivables are free and clear of
all security interests, liens, charges, and encumbrances and
to the best knowledge of the Servicer no right of rescission,
setoff, counterclaim or defense shall have been asserted or
threatened with respect to any NCMF Receivable.
(vii) No Liens. No liens or claims shall have been
filed for work, labor or materials relating to a Boat that
shall be liens prior to, or equal to the security interest in
the Boat granted by the NCMF Receivable.
(viii) Insurance. The Obligor has obtained physical
damage insurance covering the Boat and the Obligor is required
under the terms of the NCMF Receivable to maintain such
insurance.
(ix) Lawful Assignment. No NCMF Receivable shall
have been originated in, or shall be subject to the laws of
any jurisdiction under which the sale, transfer and assignment
of such NCMF Receivable under the Assignment or pursuant to
transfers of the Certificates shall be unlawful, void or
voidable.
(x) Security Interest. Upon the NCMF Receivables
being conveyed to the Trust pursuant to the Assignment, the
Trust shall have a perfected security interest under the UCC
in the NCMF Receivables.
(xi) Ship Mortgage Act. No Boat related to any
NCMF Receivable shall be required to be documented under the
Ship Mortgage.
(xii) Compliance with Law. Each NCMF Receivable
complies in all material respects with all requirements of
applicable Federal, State, and local laws and regulations
thereunder, including, without limitation, usury laws, the
Federal Truth-in-Lending Act, the Equal Credit Opportunity
Act, the Federal Trade Commission Act, the Fair Credit Billing
Act, the Fair Credit Reporting Act, the Fair Debt Collection
Practices Act, the Xxxxxxxx-Xxxx Warranty Act, the Federal
Trade Commission Credit Practices Rule, State unfair and
deceptive trade practice laws, and State adaptations of the
National Consumer Act and of the Uniform Consumer Credit Code,
and any other applicable consumer credit, equal credit
opportunity and disclosure laws.
(xiii) Title. Immediately upon the sale and
assignment contemplated by the Assignment, the Trustee for the
benefit of the Certificateholders and the
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Surety Bond Issuer shall have 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 UCC.
(xiv) As of the Cutoff Date, not more than (a)
approximately ___% of the number of Marine Receivables,
constituting approximately ___% of the Original Marine Pool
Balance are related to Boats which have been repossessed by
the Servicer, (b) approximately ___% of the number of Marine
Receivables, constituting approximately ___% of the Original
Marine Pool Balance are 30 to 59 days delinquent, (c)
approximately ___% of the number of Marine Receivables,
constituting approximately ___% of the Original Marine Pool
Balance are related to Boats which are 60 to 89 days
delinquent and (d) approximately ___% of the number of Marine
Receivables, constituting approximately ___% of the Original
Marine Pool Balance are related to Boats which are 90 or more
days delinquent.
(xv) As of the Cutoff Date, not more than (a)
approximately ___% of the number of RV Receivables,
constituting approximately ___% of the Original Pool Balance
are related to RVs which have been repossessed by the
Servicer, (b) approximately ___% of the number of RV
Receivables, constituting approximately ___% of the Original
Pool RV Balance are 30 to 59 days delinquent, (c)
approximately ___% of the number of RV Receivables,
constituting approximately ___% of the Original Pool Balance
are related to RVs which are 60 to 89 days delinquent and (d)
approximately ___% of the number of RV Receivables,
constituting approximately ___% of the Original Pool RV
Balance are related to RVs which are 90 or more days
delinquent.
(xvi) Each Receivable creates a first priority
perfected security interest in the Boat or RV, as applicable,
financed thereby in favor of NationsCredit Commercial (other
than in the case of boat motors subject to certificate of
title statutes that provide for perfection of the security
interests in such boat motors by the filing of a UCC-1
financing statement).
(xvii) To the best of the Servicer's knowledge, no
Liens or claims are pending or threatened with respect to a
Boat or RV, as applicable, which may be or become prior to or
equal with the Lien of the related Receivable.
ARTICLE XIV
Distributions; Statements to
Certificateholders
SECTION 14.1. Marine Accounts. (a) The Servicer shall
establish and maintain an account (the "Marine Collection Account") in the name
of the Trustee for the benefit of the
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Certificateholders and, to the extent herein provided, for the benefit of the
Surety Bond Issuer. The Marine Collection Account shall be a segregated,
non-interest-bearing trust account initially established with the Trustee and
maintained with the Trustee so long as (i) the deposits of the Trustee have the
Required Deposit Rating or (ii) the Marine Collection Account is maintained as
a fully segregated trust account. All amounts held in the Marine Collection
Account (other than Purchase Amounts) shall be invested in Permitted
Investments by the Trustee, at the written direction of the Servicer, in each
case such investments maturing not later than the Deposit Date following the
Collection Period in which such amounts are so invested. Purchase Amounts
deposited on a Deposit Date shall not be invested. Such written direction
shall certify that any such investment is authorized by this Section 14.1 and
complies with the requirements of Permitted Investments as set forth in
Schedule C. The Servicer shall establish and maintain an account (the "Marine
Certificate Account") in the name of the Trustee for the benefit of
Certificateholders and, to the extent provided herein, for the benefit of the
Surety Bond Issuer. The Marine Certificate Account shall be a segregated,
non-interest-bearing trust account initially established with the Trustee and
maintained with the Trustee for so long as (x) the deposits of the Trustee have
the Required Deposit Rating or (y) the Marine Certificate Account is maintained
as a fully segregated trust account. The amounts in the Marine Certificate
Account shall not be invested. Should the deposits of the Trustee no longer
have the Required Deposit Rating and the Marine Collection Account or the
Marine Certificate Account, as applicable, shall not be maintained as a fully
segregated trust account, then the Servicer shall, with the Trustee's
assistance as necessary, cause the Marine Certificate Account and/or the Marine
Collection Account to be moved, within 60 days after the occurrence of the
later of the loss of the Required Deposit Rating or the cessation of such
accounts being maintained as fully segregated trust accounts, to a bank or
trust company organized under the laws of the United States of any state
thereof, the deposits of which shall have the Required Deposit Rating.
(b) (i) The Depositor shall establish the Marine
Reserve Account in the name of the Depositor which shall be
pledged to the Collateral Agent for the benefit of the
Certificateholders and the Surety Bond Issuer. The Marine
Reserve Account shall be a segregated, non-interest-bearing
trust account initially established and maintained with the
Trustee for so long as (x) the deposits of the Trustee have
the Required Deposit Rating or (y) the Marine Reserve Account
is maintained as a fully segregated trust account. The Marine
Reserve Account shall not be property of the Trust. All
amounts held in the Marine Reserve Account shall be invested
in Permitted Investments by the Collateral Agent, at the
written direction of the Depositor, in each case such
investments maturing not later than the Deposit Date following
the Collection Period in which such amounts are so invested.
Such written direction shall certify that any such investment
is authorized by this Section 14.1 and comply with the
requirements of Permitted Investments as set forth in Schedule
C. Should the deposits of the Collateral Agent no longer have
the Required Deposit Rating or the Marine Reserve Account
shall not be maintained as a fully segregated trust account,
then the Depositor shall, with the Collateral Agent's
assistance as necessary, cause the
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Marine Reserve Account to be moved, within 60 days after the
occurrence of the later of the loss of the Required Deposit
Rating or the cessation of such accounts being maintained as
fully segregated trust accounts, to a bank or trust company
organized under the laws of the United States or any state
thereof, the deposits of which shall have the Required Deposit
Rating.
(ii) On the date of the issuance of the Marine
Certificates, the Depositor shall cause the Marine Reserve
Account Initial Deposit to be deposited into the Marine
Reserve Account. The Depositor hereby grants to the
Collateral Agent for the benefit of the Certificateholders and
the Surety Bond Issuer a security interest in and to the
Marine Reserve Account and any and all Account Property
credited thereto from time to time, including, but not limited
to, Permitted Investments, to secure payment of the
Certificates according to their terms. Amounts held from time
to time in the Marine Reserve Account will continue to be held
by the Collateral Agent for the benefit of the
Certificateholders and the Surety Bond Issuer, but the Marine
Reserve Account shall not be an asset of the Trust. Funds
held in the Marine Reserve Account shall be remitted to the
Depositor upon the Depositor's written request upon the
termination of the Trust.
SECTION 14.1A. RV AccountsERROR! BOOKMARK NOT DEFINED.. (a)
The Servicer shall establish and maintain an account (the "RV Collection
Account") in the name of the Trustee for the benefit of the Certificateholders
and, to the extent herein provided, for the benefit of the Surety Bond Issuer.
The RV Collection Account shall be a segregated, non-interest-bearing trust
account initially established with the Trustee and maintained with the Trustee
so long as (i) the deposits of the Trustee have the Required Deposit Rating or
(ii) the RV Collection Account is maintained as a fully segregated trust
account. All amounts held in the RV Collection Account (other than Purchase
Amounts) shall be invested in Permitted Investments by the Trustee, at the
written direction of the Servicer, in each case such investments maturing not
later than the Deposit Date following the Collection Period in which such
amounts are so invested. Purchase Amounts deposited on a Deposit Date shall
not be invested. Such written direction shall certify that any such investment
is authorized by this Section 14.1 and complies with the requirements of
Permitted Investments as set forth in Schedule C. The Servicer shall establish
and maintain an account (the "RV Certificate Account") in the name of the
Trustee for the benefit of Certificateholders and, the extent provided herein,
for the benefit of the Surety Bond Issuer. The RV Certificate Account shall be
a segregated, non-interest-bearing trust account initially established with the
Trustee and maintained with the Trustee for so long as (x) the deposits of the
Trustee have the Required Deposit Rating or (y) the RV Certificate Account is
maintained as a fully segregated trust account. The amounts in the RV
Certificate Account shall not be invested. Should the deposits of the Trustee
no longer have the Required Deposit Rating and the RV Collection Account or the
RV Certificate Account, as applicable, shall not be maintained as a fully
segregated trust account, then the Servicer shall, with the Trustee's
assistance as necessary, cause the RV Certificate Account and/or the RV
Collection Account to
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be moved, within 60 days after the occurrence of the later of the loss of the
Required Deposit Rating or the cessation of such accounts being maintained as
fully segregated trust accounts, to a bank or trust company organized under the
laws of the United States of any state thereof, the deposits of which shall
have the Required Deposit Rating.
(b) (i) The Depositor shall establish the RV Reserve
Account in the name of the Depositor which shall be pledged to
the Collateral Agent for the benefit of the Certificateholders
and the Surety Bond Issuer. The RV Reserve Account shall be a
segregated, non-interest-bearing trust account initially
established and maintained with the Trustee for so long as (x)
the deposits of the Trustee have the Required Deposit Rating
or (y) the RV Reserve Account is maintained as a fully
segregated trust account. The RV Reserve Account shall not be
property of the Trust. All amounts held in the RV Reserve
Account shall be invested in Permitted Investments by the
Collateral Agent, at the written direction of the Depositor,
in each case such investments maturing not later than the
Deposit Date following the Collection Period in which such
amounts are so invested. Such written direction shall certify
that any such investment is authorized by this Section 14.1
and comply with the requirements of Permitted Investments as
set forth in Schedule C. Should the deposits of the
Collateral Agent no longer have the Required Deposit Rating or
the RV Reserve Account shall not be maintained as a fully
segregated trust account, then the Depositor shall, with the
Collateral Agent's assistance as necessary, cause the RV
Reserve Account to be moved, within 60 days after the
occurrence of the later of the loss of the Required Deposit
Rating or the cessation of such accounts being maintained as
fully segregated trust accounts, to a bank or trust company
organized under the laws of the United States or any state
thereof, the deposits of which shall have the Required Deposit
Rating.
(ii) On the date of the issuance of the RV
Certificates, the Depositor shall cause the RV Reserve
Account Initial Deposit to be deposited into the RV Reserve
Account. The Depositor hereby grants to the Collateral Agent
for the benefit of the Certificateholders and the Surety Bond
Issuer a security interest in and to the RV Reserve Account
and any and all Account Property credited thereto from time to
time, including, but not limited to, Permitted Investments, to
secure payment of the Certificates according to their terms.
Amounts held from time to time in the RV Reserve Account will
continue to be held by the Collateral Agent for the benefit of
the Certificateholders and the Surety Bond Issuer, but the RV
Reserve Account shall not be an asset of the Trust. Funds
held in the RV Reserve Account shall be remitted to the
Depositor upon the Depositor's written request upon the
termination of the Trust.
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SECTION 14.1B. Account Property. (a) With respect to the
Account Property in respect of the Marine Reserve Account and the RV Reserve
Account, the Collateral Agent agrees that:
A. any Account Property that is held in
deposit accounts shall be held solely in a bank with the
Required Deposit Rating; and each such bank with the Required
Deposit Rating shall be subject to the exclusive custody and
control of the Collateral Agent, and the Collateral Agent
shall have sole signature authority with respect thereto;
B. any Account Property that
constitutes Physical Property shall be delivered to the
Collateral Agent in accordance with paragraph (a) of the
definition of "Delivery" and shall be held, pending maturity
or disposition, solely by the Collateral Agent, or a financial
intermediary (as such term is defined in Section 8-313(4) of
the Relevant UCC) acting solely for the benefit of the
Certificateholders;
C. any Account Property that is a
book-entry security held through the Federal Reserve System
pursuant to Federal book-entry regulations shall be delivered
to the Collateral Agent in accordance with paragraph (b) of
the definition of "Delivery" and shall be maintained by the
Collateral Agent, pending maturity or disposition, through
continued book-entry registration of such Account Property as
described in such paragraph; and
D. any Account Property that is an
"uncertificated security" under Article 8 of the Relevant UCC
and that is not governed by clause (C) above shall be
delivered to the Collateral Agent in accordance with paragraph
(c) of the definition of "Delivery" and shall be maintained by
the Collateral Agent, pending maturity or disposition, through
continued registration of the Collateral Agent's (or its
nominee's) ownership of such security.
(b) Effective upon Delivery of any Account Property
in the form of Physical Property, book-entry securities or
uncertificated securities, the Collateral Agent shall be
deemed to have purchased such Account Property for value, in
good faith and without notice of any adverse claim thereto.
(c) By acceptance of the Marine Certificates or
interests therein or the RV Certificates or interests therein
and by execution and delivery of the Reimbursement Agreement
by the Surety Bond Issuer, the Marine Certificateholders and
the related Certificate Owners, the RV Certificateholders and
the related Certificate Owners and the Surety Bond Issuer,
respectively, shall be deemed to have appointed Bankers Trust
Company as Collateral Agent. Bankers Trust Company hereby
accepts such appointment as Collateral Agent.
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(d) The Depositor and the Servicer agree to take or
cause to be taken such further actions, to execute, deliver
and file or cause to be executed, delivered and filed such
further documents and instruments (including, without
limitation, any financing statements under the Relevant UCC or
this Agreement) as may be determined to be necessary, in order
to perfect the interests created by Section 14.1(b) and
Section 14.1A(b) and otherwise effectuate the purposes, terms
and conditions of Section 14.1(b) and Section 14.1A(b).
SECTION 14.2. Marine Collections. The Servicer shall remit
to the Marine Collection Account within two Business Days after receipt thereof
all Marine Collections, any amounts referred to in clauses (ii) and (iv) of the
definition of Marine Available Funds, each as collected during the Marine
Collection Period; provided, however, that so long as NationsCredit Commercial
is acting as the Servicer, the Servicer shall be permitted to make remittances
of Marine Collections, any amounts referred to in clause (ii) of the definition
of Marine Available Funds and Liquidation Proceeds to the Collection Account in
next-day funds or immediately available funds by 12:30 p.m. New York City time
on the Deposit Date immediately following such Collection Period if the
specific terms and conditions set forth below in this Section 14.2 are
satisfied and only for so long as such terms and conditions are satisfied:
(i) the Servicer shall be NationsCredit
Commercial or any other Successor Servicer pursuant to Section
17.3;
(ii) there exists no Event of Default (as
described below);
(iii) if the Servicer does not have a short term
debt rating or deposit rating, as applicable, of at least A-1
from S&P and P-1 from Xxxxx'x, a guaranty, letter of credit,
surety bond or other similar instrument is issued covering
Marine Collections and RV Collections, any amounts referred to
in clause (ii) of the definitions of Marine Available Funds
and RV Available Funds and Liquidation Proceeds held by
NationsCredit Commercial or its successor, which is acceptable
to the Rating Agencies and the Surety Bond Issuer and issued
by an entity, which has a short-term debt or deposit rating,
as applicable, of at least A-1 from S&P and P-1 from Xxxxx'x;
and
(iv) the Servicer, the Trustee, the Depositor and
the Surety Bond Issuer shall not have received any notice from
S&P or Xxxxx'x that failure to deposit such funds more
frequently will result in a reduction or withdrawal of the
then current rating on the Marine Certificates or the RV
Certificates by either S&P or Xxxxx'x.
The Trustee shall not be deemed to have knowledge of any event
or circumstance under clause (ii) above that would require remittance by the
Servicer of Marine Collections or
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RV Collections, and Liquidations Proceeds to the Marine Collection Account or
RV Collection Account, as applicable, two Business Days after receipt thereof
unless the Trustee has received notice of such event or circumstance from the
Depositor, the Servicer or the Surety Bond Issuer in an Officer's Certificate
or from the Holders of Certificates evidencing not less than 25% of the
Certificate Balance.
SECTION 14.2A. RV Collections. The Servicer shall remit to
the RV Collection Account within two Business Days after receipt thereof all RV
Collections, any amounts referred to in clauses (ii) and (iv) of the definition
of RV Available Funds, each as collected during the RV Collection Period;
provided, however, that so long as NationsCredit Commercial is acting as the
Servicer, the Servicer shall be permitted to make remittances of RV
Collections, any amounts referred to in clause (ii) of the definition of RV
Available Funds and Liquidation Proceeds to the Collection Account in next-day
funds or immediately available funds by 12:30 p.m. New York City time on the
Deposit Date immediately following such Collection Period if the specific terms
and conditions set forth below in clauses (i) through (iv) of Section 14.2 are
satisfied and only for so long as such terms and conditions are satisfied.
SECTION 14.3. Application of Marine Collections and RV
Collections. As of each Determination Date, all Marine Collections and RV
Collections for the related Collection Period shall be applied as follows:
With respect to each Marine Receivable and RV Receivable
(other than a Purchased Receivable), payments thereon by or on behalf of the
Obligor shall be applied first to late payment and extension fees, second to
interest accrued on the Marine Receivable or RV Receivable, as applicable,
third to principal due on the Marine Receivable or RV Receivable, as
applicable, during the related Collection Period, fourth to insurance premiums
or amounts due on loans to the Obligors to finance the payment of insurance
premiums for collateral protection insurance purchased by the Servicer, and
fifth to administrative charges, if any. Last, any excess shall be applied to
prepay the Principal Balance of the Marine Receivable, in the case of Marine
Certificates, or RV Receivables in the case of RV Certificates.
SECTION 14.4. Additional Deposits. (a) The Servicer and/or
the Depositor shall deposit (i) in the Marine Collection Account the aggregate
Purchase Amount with respect to Purchased Receivables that are Marine
Receivables and the Servicer shall deposit therein all amounts to be paid under
Sections 12.2, 13.7 and 20.2 which relate to the Marine Receivables and (ii) in
the RV Collection Account the aggregate Purchase Amount with respect to
Purchased Receivables that are RV Receivables and the Servicer shall deposit
therein all amounts to be paid under Sections 12.2, 13.7 and 20.2A which relate
to the RV Receivables. All such deposits shall be made in immediately
available funds by 12:30 p.m. New York City Time on the Deposit Date relating
to the Collection Period during which such repurchase, purchase or other
obligation arose. The Trustee shall deposit in the Marine Certificate Account
the aggregate of any amounts received from the Surety Bond Issuer pursuant to
Section 14.5(a)(iv) on the date of receipt thereof. The Trustee shall deposit
in the RV Certificate Account the aggregate of any amounts
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received from the Surety Bond Issuer pursuant to Section 14.5A(a)(iv) on the
date of receipt thereof.
(b) If the Servicer shall be required pursuant to Section
14.2 or Section 14.2A to remit Marine Collections to the Marine Collection
Account or RV Collections to the RV Collection Account, two Business Days after
receipt rather than on a monthly basis, then, if the Servicer is NationsCredit
Commercial or an affiliate thereof is the servicer it may remit payments
collected on Unsold Contracts as well as payments collected on Marine
Receivables and Liquidation Proceeds to the Marine Collection Account or RV
Receivables and Liquidation Proceeds to the RV Collection Account, as
applicable. Upon receipt of an Officer's Certificate of the Servicer
identifying the amount of funds in the Marine Collection Account representing
Marine Collections and in the RV Collection Account representing RV Collections
attributable to Unsold Contracts, the Trustee shall transfer such funds in
accordance with the instructions contained in such Officer's Certificate.
SECTION 14.5. Marine Distributions. (a) (i) On each
Deposit Date, the Trustee shall transfer all amounts on deposit in the Marine
Collection Account to the Marine Certificate Account, in immediately available
funds, less any funds identified in an Officer's Certificate of the Servicer as
proceeds of (x) Unsold Contracts and (y) Marine Collections allocable to late
payment and extension fees, and administrative charges, provided, however, that
in the event that the Servicer is required to make deposits to the Marine
Collection Account two Business Days after receipt pursuant to Section 14.2,
the amount of Marine Available Funds transferred from the Marine Collection
Account to the Marine Certificate Account will include only those funds that
were deposited into the Marine Collection Account in the Collection Period
relating to such Distribution Date. The amount of the transfer from the Marine
Collection Account to the Marine Certificate Account shall be set forth in the
Servicer's Certificate for such Distribution Date.
(ii) On each Deposit Date, the Trustee shall
transfer from the Marine Reserve Account to the Marine
Certificate Account an amount equal to (A) the lesser of (x)
the amount on deposit in the Marine Reserve Account and (y) an
amount equal to the shortfall, if any, between, (1) Marine
Available Funds for such Collection Period and (2) the sum of
(a) the Monthly Marine Interest Payment and any Carry-Over
Monthly Marine Interest, (b) the Monthly Marine Servicing Fee
and any Carry-Over Monthly Marine Servicing Fee to be
distributed to the Servicer pursuant to Section 14.5(b)(ii)
and (c) the Monthly Marine Principal Payment and any
Carry-Over Monthly Marine Principal, each for the related
Distribution Date (collectively "Marine Priority
Distributions") reduced by (B) the amount of any distributions
made pursuant to clauses (vi) through (viii) of Section
14.5A(b) (the amount transferred pursuant to this clause (ii)
is the "Marine Reserve Account Withdrawal Amount" for such
Deposit Date).
The "Marine Reserve Account Withdrawal Amount" shall be set
forth in the Servicer's Certificate with respect to each Distribution Date.
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(iii) On each Deposit Date, the Trustee shall
transfer from the RV Reserve Account, an amount equal to the
lesser of (x) the amount on deposit in the RV Reserve Account
(after giving effect to any RV Reserve Account Withdrawal
Amount to be withdrawn from the RV Reserve Account on such
date) to the Marine Certificate Account and (y) an amount
equal to the shortfall between (A) the sum of (l) Marine
Available Funds for the related Collection Period, (2) amounts
distributed pursuant to clauses (vi) through (viii) of Section
14.5A(b) and (3) the Marine Reserve Account Withdrawal
Amounts, if any, and (B) the Marine Priority Distributions
(the amount transferred pursuant to this clause (iii) is the
"RV Reserve Account Cross Collateral Withdrawal Amount" for
such Deposit Date). Any Marine Reserve Account Cross
Collateral Withdrawal Amount distributed pursuant to this
clause (iii) shall be deemed to be outstanding until repaid
pursuant to Section 14.5(b)(xi) or Section 14.5(d).
(iv) If on any Determination Date the Servicer has
reported to the Trustee in the Servicer's Certificate that the
Servicer has determined that Marine Available Funds for the
related Distribution Date together with any Marine Reserve
Account Withdrawal Amount for such Distribution Date and any
amount in the RV Reserve Account after giving effect to any
Marine Reserve Account Cross Collateral Withdrawal Amount are
insufficient to provide for the Marine Priority Distribution
on such Distribution Date (the amount of such insufficiency is
referred to as the "Marine Surety Drawing Amount" for such
Distribution Date, then, after receipt of such Servicer's
Certificate, the Trustee shall promptly (and in any event not
later than 2:00 p.m. on the second Business Day prior to the
Distribution Date) deliver a completed demand for payment
under the Surety Bond to the Surety Bond Issuer requesting
payment in an amount equal to the Surety Drawing Amount for
such Distribution Date. The Surety Bond Issuer shall pay or
cause to be paid the amount of such demand for payment to the
Marine Trustee for credit to the Marine Certificate Account no
later than the later of 11:00 a.m. on the related Deposit Date
and the second Business Day after the Surety Bond Issuer
receives a demand for payment.
(b) On each Distribution Date, as set forth in the
Servicer's Certificate for such Distribution Date, the Trustee will make the
following distributions from the Marine Certificate Account in the following
order of priority:
(i) to the Marine Certificateholders of record as
of the related Record Date, the Monthly Marine Interest
Payment and any Carry-Over Marine Monthly Interest;
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(ii) if the Servicer is not NationsCredit
Commercial or an affiliate thereof, to the Servicer, the
Monthly Marine Servicing Fee and any Carry-Over Monthly Marine
Servicing Fee;
(iii) to the Marine Certificateholders of record as
of the related Record Date, the Monthly Marine Principal
Payment and any Carry-Over Marine Monthly Principal;
(iv) if NationsCredit Commercial or an affiliate
thereof is the Servicer, to the Servicer, the Monthly Marine
Servicing Fee and any Carry-Over Monthly Marine Servicing Fee;
(v) to the Surety Bond Issuer, any amounts owing
to the Surety Bond Issuer hereunder and pursuant to the
Reimbursement Agreement and allocable to the Marine Contract
Group and not paid;
(vi) to the RV Certificateholders an amount up to the
shortfall, between (x) the amount paid to RV
Certificateholders on such Distribution Date pursuant to
Section 14.5A(b)(i), and the Monthly RV Interest Payment and
any Carry-Over Monthly RV Interest Payment from prior
Distribution Dates;
(vii) if NationsCredit Commercial or an affiliate
thereof is not the Servicer, to the Servicer, an amount up to
the shortfall between (x) the amount paid to the Servicer on
such Distribution Date pursuant to Section 14.5A(b)(ii), and
(y) the Monthly RV Servicing Fee and any Carry-Over Monthly RV
Servicing Fee from prior Distribution Dates;
(viii) to the RV Certificateholders, an amount up to
the shortfall between (x) the amount paid to the RV
Certificateholders on such Distribution Date pursuant to
Section 14.5A(b)(iii), and (y) the Monthly RV Principal
Payment and any Carry-Over RV Principal Payments from prior
Distribution Dates;
(ix) if NationsCredit Commercial or an affiliate
thereof is the Servicer, to the Servicer, an amount up to the
shortfall between (x) the amount paid to the Servicer on such
Distribution Date pursuant to Section 14.5A(b)(iv), and (y)
the Monthly RV Servicing Fee and any Carry-Over Monthly RV
Servicing Fee from prior Distribution Dates;
(x) to the Surety Bond Issuer, an amount up to the
shortfall between (x) the amount paid to the Surety Bond
Issuer on such Distribution Date pursuant to Section
14.5A(b)(v), and (y) amounts owing to the Surety Bond Issuer
under the Reimbursement Agreement allocable to the RV Contract
Group and not paid without giving effect to any distributions
made on such Distribution Date pursuant
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to clause (v) of Section 14.5A(b);
(xi) to the Collateral Agent, an amount up to the
lesser of (x) the sum of any outstanding RV Reserve Account
Cross Collateral Withdrawal Amounts from prior Distribution
Dates which have not been repaid pursuant to this clause (xi)
or Section 14.5(d) and (y) the shortfall between the Specified
RV Reserve Account Requirement and the amount on deposit in
the RV Reserve Account on such Distribution Date after giving
effect to the distribution set forth in clause (xii) of
Section 14.5A(b), for deposit into the RV Reserve Account;
(xii) to the Collateral Agent, an amount up to the
shortfall between the Specified Marine Reserve Account
Requirement and the amount on deposit in the Marine Reserve
Account on such Distribution Date without giving effect to any
distributions on such date for deposit into the Marine Reserve
Account;
(xiii) to the Collateral Agent, an amount up to the
shortfall between the Specified RV Reserve Account Requirement
and the amount on deposit in the RV Reserve Account, after
giving effect to the distribution, set forth in clause (xi)
above and clause (xii) of Section 14.5A(b), for deposit into
the RV Reserve Account; and
(xiv) to the Depositor, any remaining amounts.
(c) On each Distribution Date as set forth in the
Servicer's Certificate for such Distribution Date, the Trustee shall withdraw
from the Marine Reserve Account and distribute to the Depositor an amount equal
to the excess, if any, of the (x) amount on deposit in the Marine Reserve
Account over (y) the Specified Marine Reserve Account Requirement.
(d) On any date where the amount on deposit in the RV
Reserve Account equals the Specified RV Reserve Account Balance, all
outstanding RV Reserve Account Cross Collateral Withdrawal Amounts from prior
Distribution Dates shall be deemed to have been repaid on such date.
Distributions to Certificateholders, except in the case of
distributions under Section 20.1, shall be made by check mailed by the Trustee
to each Certificateholder's respective address of record on the Certificate
Register (or, where a Clearing Agency is the Certificateholder, by delivery of
immediately available funds) and distributions to the Servicer, the Surety Bond
Issuer, the Collateral Agent or the Depositor shall be made by wire transfer of
immediately available funds.
SECTION 14.5A. RV Distributions. (a) (i) On each Deposit
Date, the Trustee shall transfer all amounts on deposit in the RV Collection
Account to the RV Certificate Account, in immediately available funds, less any
funds identified in an Officer's Certificate of the Servicer as proceeds of (x)
Unsold Contracts and (y) RV Collections allocable to late
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payment and extension fees, and administrative charges, provided, however, that
in the event that the Servicer is required to make deposits to the RV
Collection Account two Business Days after receipt pursuant to Section 14.2,
the amount of RV Available Funds transferred from the RV Collection Account to
the RV Certificate Account will include only those funds that were deposited
into the Collection Account in the Collection Period relating to such
Distribution Date. The amount of the transfer from the RV Collection Account
to the RV Certificate Account shall be set forth in the Servicer's Certificate
for such Distribution Date.
(ii) On each Deposit Date, the Trustee shall
transfer from the RV Reserve Account to the RV Certificate
Account an amount equal to (A) the lesser of (x) the amount on
deposit in the RV Reserve Account and (y) an amount equal to
the shortfall, if any, between, (1) RV Available Funds for
such Collection Period and (2) the sum of (a) the Monthly RV
Interest Payment and any Carry-Over Monthly RV Interest, (b)
the Monthly RV Servicing Fee and any Carry-Over Monthly RV
Servicing Fee to be distributed to the Servicer pursuant to
Section 14.5A(b)(ii) and (c) the Monthly RV Principal Payment
and any Carry-Over Monthly Principal Payment, each for the
related Distribution Date (collectively "RV Priority
Distributions") reduced by (B) the amount of any distributions
made pursuant to clauses (vi) through (viii) of Section
14.5(b) (the amount transferred pursuant to this clause (ii)
is the " RV Reserve Account Withdrawal Amount" for such
Deposit Date).
The RV Reserve Account Withdrawal Amount shall be set forth in
the Servicer's Certificate with respect to each Distribution Date.
(iii) On each Deposit Date, the Trustee shall
transfer from the Marine Reserve Account (after giving effect
to any Marine Reserve Account Withdrawal Amount to be
withdrawn from the Marine Reserve Account on such date) to the
RV Certificate Account, an amount equal to the lesser of (x)
the amount on deposit in the Marine Reserve Account and (y) an
amount equal to the shortfall between (A) the sum of (1) RV
Available Funds for the related Collection Period, (2) amounts
distributed pursuant to clauses (vi) through (viii) of Section
14.5(b) and (3) the RV Reserve Account Withdrawal Amount, if
any, and (B) the RV Priority Distributions (the amount
transferred pursuant to this clause (iii) is the "Marine
Reserve Account Cross Collateral Amount"). Any Marine Reserve
Account Cross Collateral Withdrawal Amount distributed
pursuant to this clause (iii) shall be deemed to be
outstanding until repaid pursuant to Section 14.5A(b)(xi) or
Section 14.5A(d).
(iv) If on any Determination Date the Servicer has
reported to the Trustee in the Servicer's Certificate that the
Servicer has determined that RV Available Funds for the
related Distribution Date together with any RV Reserve Account
Withdrawal Amount for such Distribution Date and any amount in
the
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Marine Reserve Account after giving effect to any Marine
Reserve Account Withdrawal Amount are insufficient to provide
for the RV Priority Distribution on such Distribution Date
(the amount of such insufficiency is referred to as the "RV
Surety Drawing Amount" for such Distribution Date, then, after
receipt of such Servicer's Certificate, the Trustee shall
promptly (and in any event not later than 2:00 p.m. on the
second Business Day prior to the Distribution Date) deliver a
completed demand for payment under the Surety Bond to the
Surety Bond Issuer requesting payment in an amount equal to
the Surety Drawing Amount for such Distribution Date. The
Surety Bond Issuer shall pay or cause to be paid the amount of
such demand for payment to the RV Trustee for credit to the
Certificate Account no later than the later of 11:00 a.m. on
the related Deposit Date and the second Business Day after the
Surety Bond Issuer receives a demand for payment.
(b) On each Distribution Date, as set forth in the
Servicer's Certificate for such Distribution Date, the Trustee will make the
following distributions from the RV Certificate Account in the following order
of priority:
(i) to the RV Certificateholders of record as of
the related Record Date, the Monthly RV Interest Payment and
any Carry-Over RV Monthly Interest;
(ii) if the Servicer is not NationsCredit
Commercial or an affiliate thereof, to the Servicer, the
Monthly RV Servicing Fee and any Carry-Over Monthly RV
Servicing Fee;
(iii) to the RV Certificateholders of record as of
the related Record Date, the Monthly RV Principal Payment and
any Carry-Over RV Monthly Principal;
(iv) if NationsCredit Commercial or an affiliate
thereof is the Servicer, to the Servicer, the Monthly RV
Servicing Fee and any Carry-Over Monthly RV Servicing Fee;
(v) to the Surety Bond Issuer, any amounts owing
to the Surety Bond Issuer hereunder and pursuant to the
Reimbursement Agreement and this Agreement allocable to the RV
Contract Group and not paid;
(vi) to the Marine Certificateholders an amount up to
the shortfall between (x) the amount paid to the Marine
Certificateholders pursuant to Section 14.5(b)(i), and (y) the
Monthly Marine Interest Payment and any Carry-Over Monthly
Marine Interest Payment from prior Distribution Dates;
(vii) if NationsCredit Commercial or an affiliate
thereof is not the Servicer,
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to the Servicer, an amount up to the shortfall between (x) the
amount paid to the Servicer on such Distribution Date pursuant
to Section 14.5(b)(ii), and (y) the Monthly Marine Servicing
Fee and any Carry-Over Monthly Marine Servicing Fee from prior
Distribution Dates;
(viii) to the Marine Certificateholders, an amount up
to the shortfall between (x) the amount paid to the Marine
Certificateholders on such Distribution Date pursuant to
Section 14.5(b)(iii), and (y) the Monthly Marine Principal
Payment and any Carry-Over Marine Principal Payments from
prior Distribution Dates;
(ix) if NationsCredit Commercial or an affiliate
thereof is the Servicer, to the Servicer, an amount up to the
shortfall between (x) the amount paid to the Servicer on such
Distribution Date pursuant to Section 14.5(b)(iv), and (y) the
Monthly Marine Servicing Fee and any Carry-Over Monthly Marine
Servicing Fee from prior Distribution Dates;
(x) to the Surety Bond Issuer, an amount up to the
shortfall between (x) the amount paid to the Surety Bond
Issuer on such Distribution Date pursuant to Section
14.5(b)(v), and (y) amounts owing to the Surety Bond Issuer
under the Reimbursement Agreement allocable to the Marine
Contract Group and not paid without giving effect to any
distributions made on such Distribution Date pursuant to
clause (v) of Section 14.5(b);
(xi) to the Collateral Agent, an amount up to the
lesser of (x) the sum of any outstanding Marine Reserve
Account Cross Collateral Withdrawal Amounts form prior
Distribution Dates which have not been repaid pursuant to this
clause (xi) or Section 14.5A(d) and (y) the shortfall, if any,
between the Specified Marine Reserve Account Requirement and
the amount on deposit in the Marine Reserve Account on such
Distribution Date after giving effect to the distribution set
forth in clause (xii) of Section 14.5(b), for deposit into the
Marine Reserve Account;
(xii) to the Collateral Agent, an amount up to the
shortfall between the Specified RV Reserve Account Requirement
and the amount on deposit in the RV Reserve Account on such
Distribution Date without giving effect to any distributions
on such date for deposit into the RV Reserve Account;
(xiii) to the Collateral Agent, an amount up to the
shortfall between the Specified Marine Reserve Account
Requirement and the amount on deposit in the Marine Reserve
Account, after giving effect to the distribution set forth in
clause (xi) and (xii) of Section 14.5(b) for deposit into the
Marine Reserve Account; and
(xiv) to the Depositor, any remaining amounts.
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(c) On each Distribution Date as set forth in the
Servicer's Certificate for such Distribution Date, the Trustee shall withdraw
from the RV Reserve Account and distribute to the Depositor an amount equal to
the excess, if any, of the (x) amount on deposit in the RV Reserve Account over
(y) the Specified RV Reserve Account Requirement.
(d) On any date where the amount on deposit in the Marine
Reserve Account equals the Specified Marine Reserve Account Balance, all
outstanding Marine Reserve Account Cross Collateral Withdrawal Amounts from
prior Distribution Dates shall be deemed to have been repaid on such date.
Distributions to Certificateholders, except in the case of
distributions under Section 20.1, shall be made by check mailed by the Trustee
to each Certificateholder's respective address of record on the Certificate
Register (or, where a Clearing Agency is the Certificateholder, by delivery of
immediately available funds) and distributions to the Servicer, the Surety Bond
Issuer, the Collateral Agent or the Depositor shall be made by wire transfer of
immediately available funds.
SECTION 14.6. Net Deposits. For so long as the Servicer
shall be entitled pursuant to Section 14.2 to remit Marine Collections on a
monthly basis rather than more frequently, the Servicer may make the
remittances pursuant to Sections 14.2 and 14.4 above net of amounts to be
distributed to the Servicer pursuant to Section 14.5(b). Nonetheless, the
Servicer shall account for all the above described remittances and
distributions in the Servicer's Certificate as if the amounts were deposited
and/or transferred separately. For so long as Servicer shall be entitled
pursuant to Section 14.2A to remit RV Collections on a monthly basis rather
than more frequently, the Servicer may make the remittances pursuant to
Sections 14.2A and 14.4A above net of amounts to be distributed to the Servicer
pursuant to Section 14.5A(b). Nonetheless, the Servicer shall account for all
the above described remittances and distributions in the Servicer's Certificate
as if the amounts were deposited and/or transferred separately.
SECTION 14.7. Statements to Marine Certificateholders. (a)
On each Distribution Date, the Servicer shall provide to the Trustee the
Statement to Certificateholders, setting forth for the Collection Period
relating to such Distribution Date the following information (stated in the
case of items (i), (ii) and (iii), on the basis of $1,000 initial principal
amount) as of such Distribution Date a copy of which shall be forwarded by the
Trustee to each Certificateholder on such Distribution Date:
(i) The amount of the Marine Certificateholder's
distribution which constitutes the Monthly Marine Principal
Payment (including any Carry-Over Marine Monthly Principal);
(ii) The amount of the Marine Certificateholder's
distribution which constitutes the Monthly Marine Interest
Payment (including any Carry-Over Monthly Marine Interest);
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(iii) The Marine Certificateholder's pro rata
portion of the Monthly Marine Servicing Fee (including any
Carry-Over Monthly Marine Servicing Fee);
(iv) The Marine Certificate Balance and the Marine
Certificate Factor as of the close of business on such
Distribution Date; and
(v) The Marine Pool Balance as of the last day of
the related Collection Period.
(b) Within the prescribed period of time for tax
reporting purposes after the end of each calendar year during the term of the
Agreement, the Trustee shall mail, to each Person who at any time during such
calendar year shall have been a Marine Certificateholder, a statement
containing the sum of the amounts determined in each of clauses (i) and (ii),
for such calendar year or, in the event such Person shall have been a Marine
Certificateholder during a portion of such calendar year, for the applicable
portion of such year.
SECTION 14.7A. Statements to RV Certificateholders. (a) On
each Distribution Date, the Servicer shall provide to the Trustee the Statement
to Certificateholders, setting forth for the Collection Period relating to such
Distribution Date the following information (stated in the case of items (i),
(ii) and (iii), on the basis of $1,000 initial principal amount) as of such
Distribution Date a copy of which shall be forwarded by the Trustee to each
Certificateholder on such Distribution Date:
(i) The amount of the RV Certificateholder's
distribution which constitutes the Monthly RV Principal
Payment (including any Carry-Over RV Monthly Principal);
(ii) The amount of the RV Certificateholder's
distribution which constitutes the Monthly RV Interest Payment
(including any Carry-Over RV Monthly Interest);
(iii) The RV Certificateholder's pro rata portion
of the Monthly RV Servicing Fee (including any Carry-Over
Monthly RV Servicing Fee);
(iv) The RV Certificate Balance and the RV
Certificate Factor as of the close of business on such
Distribution Date; and
(v) The RV Pool Balance as of the last day of the
related Collection Period.
(b) Within the prescribed period of time for tax
reporting purposes after the end of each calendar year during the term of the
Agreement, the Trustee shall mail, to each
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Person who at any time during such calendar year shall have been a RV
Certificateholder, a statement containing the sum of the amounts determined in
each of clauses (i) and (ii), for such calendar year or, in the event such
Person shall have been a RV Certificateholder during a portion of such calendar
year, for the applicable portion of such year.
ARTICLE XIV A
The Surety Bond
SECTION 14A.1. The Surety Bond. The Servicer and the
Transferor agree, simultaneously with the execution and delivery of this
Agreement, to cause the Surety Bond Issuer to issue the Surety Bond to the
Trustee for the benefit of the Trust in accordance with the terms thereof.
SECTION 14A.2. Preference Events. If the payment guaranteed by
the Surety Bond Issuer under the Surety Bond is voided pursuant to a final and
non-appealable order (a "Preference Event") under any applicable bankruptcy,
insolvency, receivership or similar law in an Insolvency Proceeding and, as a
result of such a Preference Event, the Trustee is required to return such
voided payment, or any portion of such voided payment, made in respect of the
Certificates (an "Avoided Payment"), the Trustee shall furnish to the Surety
Bond Issuer: (x) a certified copy of a final order of a court exercising
jurisdiction in such Insolvency Proceeding to the effect that the Trustee is
required to return any such payment or portion thereof during the term of the
Surety Bond because such payment was voided under applicable law, with respect
to which order the appeal period has expired without an appeal having been
filed (the "Final Order"), (y) an assignment, in form reasonably satisfactory
to the Surety Bond Issuer, irrevocably assigning to the Surety Bond Issuer all
rights and claims of the Trustee relating to or arising under such Avoided
Payment and (z) a Notice for Payment appropriately completed and executed by
the Trustee.
SECTION 14A.3. Surrender of Surety Bond. The Trustee shall
surrender the Surety Bond to the Surety Bond Issuer for cancellation upon its
expiration in accordance with the terms thereof.
SECTION 14A.4. Replacement Surety Bond. In the event of a
Surety Bond Issuer Default or the rating of the Surety Bond Issuer is
downgraded by any Rating Agency such that the rating of the Certificates is
reduced, suspended or withdrawn, the Servicer shall be permitted, in accordance
with the terms of the Reimbursement Agreement, but shall not be obligated, to
substitute a new surety bond for the Surety Bond or may arrange for any other
form of credit enhancement; provided, however, that, in each case, the rating
of the Certificates following any such substitution shall be the highest rating
available for each of the Rating Agencies and provided further that the Surety
Bond Issuer is reimbursed for all amounts due under this Agreement and the
Reimbursement Agreement. It shall be a condition to substitution of any such
new surety bond or other form of credit enhancement that there be delivered to
the Trustee (i) an Officer's Certificate by the Servicer stating that the
conditions to such substitution set forth in this Section 14A.4 (other than in
clause (ii)) have been satisfied and (ii) a legal opinion, acceptable in form
to the Trustee,
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from counsel to the provider of such surety bond or other form of credit
enhancement with respect to the enforceability thereof and such other matters
as the Trustee may require. Upon receipt of written notice of any such
substitution from the Servicer and the taking of physical possession of the
replacement surety bond or other form of credit enhancement, the Trustee shall,
within five (5) Business Days following receipt of such notice and such taking
of physical possession, deliver the Surety Bond marked "Cancelled" to the
Surety Bond Issuer, and the Surety Bond Issuer will have no further liability
under the Surety Bond.
ARTICLE XV
The Certificates
SECTION 15.1. The Certificates. The Certificates shall be
issued in book-entry form in minimum denominations representing $1,000 of
initial principal balance of the Receivables and in integral multiples thereof;
provided, however, that one Certificate may be issued in a denomination that
includes any residual amount and that such Certificate shall be retained by the
Depositor (the "Residual Certificate"). The Certificates shall be executed by
the Trustee on behalf of the Trust solely in its capacity as Trustee by manual
or facsimile signature of a Trustee Officer. Certificates bearing the manual
or facsimile signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Trust,
shall be valid and binding obligations of the Trust, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
authentication and delivery of such Certificates or did not hold such offices
at the date of such Certificates.
SECTION 15.2. Authentication of Certificates. The Trustee
shall cause the Certificates to be executed on behalf of the Trust,
authenticated and delivered to or upon the written order of the Depositor,
signed by the Depositor's chairman of the board, the president, any vice
chairman of the board, any vice president, the treasurer, any assistant
treasurer or the controller of the Depositor, without further corporate action
by the Depositor, in authorized denominations, pursuant to the Agreement. No
Certificate shall entitle its holder to any benefit under the Agreement, or
shall be valid for any purpose, unless there shall appear on such Certificate a
certificate of authentication substantially in the form set forth in Exhibit B
hereto executed by the Trustee by manual signature; such authentication shall
constitute conclusive evidence that such Certificate shall have been duly
authenticated and delivered hereunder. All Certificates shall be dated the
date of their authentication.
SECTION 15.3. Registration of Transfer and Exchange of
Certificates. (a) The Certificate Registrar shall keep or cause to be kept,
at the office or agency maintained pursuant to Section 15.7, a Certificate
Register in which, subject to such reasonable regulations as it may prescribe,
the Trustee shall provide for the registration of Certificates and of transfers
and exchanges of Certificates as herein provided. The Trustee shall be the
initial Certificate Registrar.
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(b) Upon surrender for registration of transfer of any
Certificate at the Corporate Trust Office, the Trustee shall execute,
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates in authorized denominations of a like
aggregate amount dated the date of authentication by the Trustee. At the
option of a Holder, Certificates may be exchanged for other Certificates of
authorized denominations of a like aggregate amount upon surrender of the
Certificates to be exchanged at the Corporate Trust Office.
(c) Every Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the Holder or his attorney duly authorized in
writing. Each Certificate surrendered for registration of transfer and
exchange shall be canceled and subsequently disposed of by the Trustee.
(d) No service charge shall be made for any registration
of transfer or exchange of Certificates, but the Trustee may require payment of
a sum sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
SECTION 15.4. Mutilated, Destroyed, Lost or Stolen
Certificates. If (a) any mutilated Certificate shall be surrendered to the
Certificate Registrar, or if the Certificate Registrar shall receive evidence
to its satisfaction of the destruction, loss or theft of any Certificate and
(b) there shall be delivered to the Certificate Registrar or the Trustee such
security or indemnity as may be required by them to save each of them harmless,
then in the absence of notice that such Certificate shall have been acquired by
a bona fide purchaser, the Trustee on behalf of the Trust shall execute and the
Trustee shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
tenor and denomination. In connection with the issuance of any new Certificate
under this Section 15.4, the Trustee and the Certificate Registrar may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection therewith. Any duplicate Certificate issued
pursuant to this Section 15.4 shall Constitute conclusive evidence of ownership
in the Trust, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
SECTION 15.5. Persons Deemed Owners. Prior to due
presentation of a Certificate for registration of transfer, the Trustee or the
Certificate Registrar may treat the Person in whose name any Certificate shall
be registered as the owner of such Certificate for the purpose of receiving
distributions pursuant to Section 14.5 and for all other purposes whatsoever,
and neither the Trustee nor the Certificate Registrar shall be bound by any
notice to the contrary.
SECTION 15.6. Access to List of Certificateholders Names and
Addresses. At such time as the Certificates exist as Definitive Certificates,
the Trustee shall furnish or cause to be furnished to the Servicer and the
Surety Bond Issuer, within 15 days after receipt by the
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Trustee of a request therefor from the Servicer or the Surety Bond Issuer in
writing, a list, of the names and addresses of the Certificateholders as of the
most recent Record Date. If three or more Certificateholders, or one or more
Holders of Certificates aggregating not less than 25% of the Certificate
Balance, apply in writing to the Trustee, and such application states that the
applicants desire to communicate with other Certificateholders with respect to
their rights under the Agreement or under the Certificates and such application
shall be accompanied by a copy of the communication that such applicants
propose to transmit, then the Trustee shall promptly after the receipt of such
application, afford such applicants access during normal business hours to the
current list of Certificateholders. Each Holder, by receiving and holding a
Certificate, shall be deemed to have agreed to hold neither the Servicer nor
the Trustee accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
SECTION 15.7. Maintenance of Office or Agency. The Trustee
shall maintain in the Borough of Manhattan, the City of New York, an office or
offices or agency or agencies where Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Trustee in respect of the Certificates and the Agreement may be served.
The Trustee initially designates the Corporate Trust Office as specified in the
Agreement as its office for such purposes. The Trustee shall give prompt
written notice to the Servicer and to Certificateholders of any change in the
location of the Certificate Register or any such office or agency.
SECTION 15.8. Book-Entry Certificates. The Certificates,
upon original issuance (except for the Residual Certificate), will be issued in
the form of one or more global Certificates registered in the name of the
nominee of The Depository Trust Company, the initial Clearing Agency, by or on
behalf of the Depositor. The Certificates delivered to The Depository Trust
Company shall initially be registered on the Certificate Register in the name
of CEDE & CO., the nominee of the initial Clearing Agency, and no Certificate
Owner will receive a physical certificate representing such Certificate Owner's
interest in the Certificates, except as provided in Section 15.10. Unless and
until definitive, fully registered Certificates (the "Definitive Certificates")
have been issued to Certificate Owners pursuant to Section 15.10:
(i) the provisions of this Section 15.8 shall be
in full force and effect;
(ii) the Depositor, the Servicer, the Certificate
Registrar and the Trustee may deal with the Clearing Agency
for all purposes (including the making of distributions on the
Certificates) as the authorized representative of the
Certificate Owners;
(iii) to the extent that the provisions of this
Section 15.8 conflict with any other provisions of the
Agreement, the provisions of this Section 15.8 shall control;
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(iv) the rights of Certificate Owners shall be
exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between
such Certificate Owners and the Clearing Agency and/or the
Clearing Agency Participants. Pursuant to the Depository
Agreement, unless and until Definitive Certificates are issued
pursuant to Section 15.10, the initial Clearing Agency will
make book-entry transfers among the Clearing Agency
Participants and receive and transmit distributions of
principal and interest on the Certificates to such Clearing
Agency Participants; and
(v) whenever the Agreement requires or permits
actions to be taken based upon instructions or directions of
Holders of Certificates evidencing a specified percentage of
the Pool Balance the Clearing Agency will take such actions
with respect to specified percentages of the Pool Balance only
at the direction of and on behalf of Clearing Agency
Participants whose holdings include undivided interests that
satisfy such specified percentages. DTC may take conflicting
actions with respect to other undivided interests to the
extent that such actions are taken on behalf of Clearing
Agency Participants whose holdings include such undivided
interests.
SECTION 15.9. Notices to Clearing Agency. Whenever notice or
other communication to the Certificateholders is required under the Agreement,
other than to the Holder of the Residual Certificate, unless and until
Definitive Certificates shall have been issued to Certificate Owners pursuant
to Section 15.10, the Trustee and the Servicer shall give all such notices and
communications specified herein to be given to Holders of the Certificates to
the Clearing Agency.
SECTION 15.10. Definitive Certificates. If (i) the Depositor
advises the Trustee in writing that the Clearing Agency is no longer willing or
able to properly discharge its responsibilities as Depository with respect to
the Certificates and the Trustee or the Depositor is unable to locate a
qualified successor, (ii) the Depositor, at its option, elects to terminate the
book-entry system through the Clearing Agency, or (iii) after the occurrence of
an Event of Default, Certificate owners representing beneficial interests
aggregating not less than 51% of the Certificate Balance advise the Trustee and
the Clearing Agency through the Clearing Agency Participants in writing that
the continuation of a book-entry system through the Clearing Agency is no
longer in the best interests of the Certificate Owners, then the Trustee
through the Clearing Agency shall notify all Certificate Owners of the
occurrence of any such event and of the availability through the Clearing
Agency of Definitive Certificates. Upon surrender by the Clearing Agency of
the global Certificates representing the Certificates and instructions for
re-registration, the Trustee shall issue the Definitive Certificates and
deliver such Definitive Certificates in accordance with the instructions of the
Clearing Agency. Neither the Depositor, the Certificate Registrar nor the
Trustee shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates, the Trustee shall recognize the
Holders of the
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Definitive Certificates as Certificateholders hereunder. The Trustee shall not
be liable if the Trustee or the Depositor is unable to locate a qualified
successor Clearing Agency.
ARTICLE XVI
The Depositor
SECTION 16.1. Representations of Depositor. The Depositor
makes the following representations on which the Trustee relies in accepting
the Receivables in trust and executing and authenticating the Certificates.
(i) Organization and Good Standing. The
Depositor shall have been duly organized and shall be 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
shall be currently owned and such business is now conducted,
and had at all relevant times, and shall have, power,
authority and legal right to acquire and own the Receivables.
(ii) Due Qualification. The Depositor shall be
duly qualified to do business as a foreign corporation in good
standing, and shall have obtained all necessary licenses and
approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business shall require
such qualifications.
(iii) Principal Place of Business. The Depositor's
principal place of business is located in the State of Texas.
(iv) Power and Authority. The Depositor shall
have the power and authority to execute and deliver the
Agreement and to carry out its terms; the Depositor shall have
full power and authority to sell and assign the property to be
sold and assigned to and deposited with the Trustee as part of
the Trust and shall have duly authorized such sale and
assignment to the Trustee by all necessary corporate action;
and the execution, delivery and performance of the Agreement
shall have been duly authorized by the Depositor by all
necessary corporate action.
(v) Valid Sale; Binding Obligations. The
Agreement shall evidence (A) a valid sale, transfer and
assignment of the Receivables, enforceable against creditors
of and purchasers from the Depositor, and (B) a legal, valid
and binding obligation of the Depositor enforceable in
accordance with its terms.
(vi) No Violation. The consummation of the
transactions contemplated by the Agreement and the fulfillment
of the terms hereof shall 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
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incorporation or by-laws of the Depositor, or any indenture,
agreement or other instrument to which the Depositor 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 (other than the Agreement); nor violate any
law or, to the best of the Depositor's knowledge, any order,
rule or regulation applicable to the Depositor of any court or
of any Federal or State regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over
the Depositor or its properties.
(vii) No Proceedings. There are no proceedings or
investigations pending, or to the Depositor's best knowledge,
threatened, before any court, regulatory body, administrative
agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties: (A)
asserting the invalidity of the Agreement or the Certificates;
(B) seeking to prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated by the
Agreement; (C) seeking any determination or ruling that might
materially and adversely affect the performance by the
Depositor of its obligations under, or the validity or
enforceability of, the Agreement or the Certificates; or (D)
relating to the Depositor and which might adversely affect the
Federal income tax attributes of the Certificates.
(viii) 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 the Depositor of
the Agreement, the Reimbursement Agreement and the
Certificates, the performance by the Depositor of the
transactions contemplated by the Agreement, the Reimbursement
Agreement and the Certificates, and the fulfillment by the
Depositor of the terms hereof, have been obtained; provided,
however, that the Depositor makes no representation or
warranty regarding State securities or "blue sky" laws in
connection with the distribution of the Certificates.
SECTION 16.2. Liability of Depositor; Indemnities. The
Depositor shall be liable in accordance herewith only to the extent of the
obligations specifically undertaken by the Depositor under the Agreement:
(i) The Depositor shall indemnify, defend and
hold harmless the Trustee (which for purposes of this Section
16.2 shall include its directors, employees, officers and
agents) and the Trust from and against any taxes that may at
any time be asserted against the Trustee or the Trust with
respect to, and as of the date of, the sale of the Receivables
to the Trustee or the issuance and original sale of the
Certificates, including any sales, gross receipts, general
corporation, tangible personal property, privilege or license
taxes (but, in the case of the Trust, not including any taxes
asserted with respect to ownership of the Receivables or
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Federal or other income taxes arising out of the transactions
contemplated by the Agreement) and costs and expenses in
defending against the same.
(ii) The Depositor shall indemnify, defend and
hold harmless the Trustee (which for purposes of this Section
16.2 shall include its directors, employees, officers and
agents) and the Trust from and against any loss, liability or
expense incurred by reason of (a) the Depositor's willful
misfeasance, bad faith or negligence in the performance of its
duties under the Agreement, or by reason of reckless disregard
of its obligations and duties under the Agreement, (b) the
Depositor's violation of Federal or State securities laws in
connection with the registration of the sale of the
Certificates or (c) any action taken by the Trustee at the
direction of the Servicer pursuant to Section 13.1 or
otherwise.
Indemnification under this Section 16.2 shall survive the
termination of the Agreement and the resignation or removal of the Trustee, and
shall include, without limitation, reasonable fees and expenses of counsel and
expenses of litigation. If the Depositor shall have made any indemnity
payments to the Trustee pursuant to this Section 16.2 and the Trustee
thereafter shall collect any of such amounts from others, the Trustee shall
repay such amounts to the Depositor, without interest.
SECTION 16.3. Merger or Consolidation of, or Assumption of
the Obligations of Depositor. Any Person (a) into which the Depositor may be
merged or consolidated, (b) which may result from any merger or consolidation
to which the Depositor shall be a party, or (c) which may succeed to the
properties and assets of the Depositor substantially as a whole, which Person
in any of the foregoing cases executes an agreement of assumption to perform
every obligation of the Depositor under the Agreement and the Reimbursement
Agreement, shall be the successor to the Depositor hereunder without the
execution or filing of any document or any further act by any of the parties to
the Agreement; provided, however, that (i) immediately after giving effect to
such transaction, no representation or warranty made pursuant to Section 12.1
shall have been breached and no Event of Default, and no event that, after
notice or lapse of time or both, would become an Event of Default, shall have
happened and be continuing, (ii) the Depositor shall have delivered to the
Trustee an Officer's Certificate and an Opinion of Counsel each stating that
such consolidation, merger or succession and such agreement of assumption
comply with this Section 16.3 and (iii) the Depositor shall have delivered an
Opinion of Counsel either (A) stating that, in the opinion of such counsel, all
financing statements and continuation statements and amendments thereto have
been executed and filed that are necessary fully to preserve and protect the
interest of the Trustee in the Receivables, and reciting the details of such
filings, or (B) stating that, in the opinion of such counsel, no such action
shall be necessary to preserve and protect such interest. The Depositor shall
provide notice of any merger, consolidation or succession pursuant to this
Section 16.3 to each Rating Agency and the Surety Bond Issuer. Notwithstanding
anything herein to the contrary, the Depositor shall not consummate any
transaction of a type referred to in clauses (a), (b) or (c) above unless at
such time or prior thereto
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the foregoing agreement of assumption shall have been executed and the
conditions described in clauses (i), (ii) and (iii) shall have been satisfied.
SECTION 16.4. Limitation on Liability of Depositor and
Others. The Depositor and any director or officer or employee or agent of the
Depositor may rely in good faith on the advice of counsel or on any document of
any kind, prima facie properly executed and submitted by any Person respecting
any matters arising hereunder. The Depositor shall not be under any obligation
to appear in, prosecute or defend any legal action that shall not be incidental
to its obligations under the Agreement, and that in its opinion may involve it
in any expense or liability.
SECTION 16.5. Depositor May Own Certificates. The Depositor
and any Person controlling, controlled by or under common control with, the
Depositor may in its individual or any other capacity become the owner or
pledgee of Certificates with the same rights as it would have if it were not
the Depositor or an affiliate thereof, except as otherwise provided in the
definition of "Certificateholder" specified in Section 11.1. Certificates so
owned by or pledged to the Depositor or such controlling or commonly controlled
Person shall have an equal and proportionate benefit under the provisions of
the Agreement, without preference, priority or distinction as among all the
Certificates.
SECTION 16.6. Depositor's Interest in Reserve Accounts; No
Transfer. The Depositor hereby acknowledges that the Marine Reserve Account
and the RV Reserve Account shall not be a part of the Trust. The Depositor
hereby acknowledges that any amounts on deposit in the Marine Reserve Account
and the RV Reserve Account (and any investment earnings thereon) is owned
directly by it, and the Depositor agrees to treat the same as its assets (and
earnings) for federal tax and all other purposes. Funds deposited therein
shall be distributable to the Marine Collection Account or the RV Collection
Account, as applicable, the Surety Bond Issuer and the Depositor as described
in this Agreement and in the Reimbursement Agreement.
ARTICLE XVII
The Servicer
SECTION 17.1. Representations of Servicer. The Servicer
makes the following representations on which the Trustee relies in accepting
the Receivables in trust and executing and authenticating the Certificates.
The representations speak as of the execution and delivery of the Agreement and
shall survive the sale of the Receivables to the Trustee.
(i) Organization and Good Standing. The Servicer
shall have been duly organized and shall be validly existing
as a corporation in good standing under the laws of the State
of its incorporation, with power and authority to own its
properties and to conduct its business as such properties
shall be 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, sell and service
the
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Receivables and to hold the Receivable Files as custodian on
behalf of the Trustee.
(ii) Due Qualification. The Servicer shall be
duly qualified to do business as a foreign corporation in good
standing, and shall have obtained all necessary licenses and
approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business (including
the servicing of the Receivables as required by the Agreement)
shall require such qualifications.
(iii) Power and Authority. The Servicer shall have
the power and authority to execute and deliver the Agreement
and to carry out its terms; and the executions delivery and
performance of the Agreement shall have been duly authorized
by the Servicer by all necessary corporate action.
(iv) Valid Sale; Binding Obligations. The
Agreement shall constitute a legal, valid and binding
obligation of the Servicer 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
principals of equity.
(v) No Violation. The consummation of the
transactions contemplated by this Agreement and the
fulfillment of the terms hereof shall 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 the Servicer, or any indenture, agreement or other
instrument to which the Servicer 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 (other than
the Agreement); nor violate any law or, any order, rule or
regulation applicable to the Servicer of any court or of any
Federal or State regulatory body, administrative agency, or
other governmental instrumentality having jurisdiction over
the Servicer or its properties.
(vi) No Proceedings. There are no proceedings or
investigations pending, or, to the Servicer's knowledge,
threatened, before any court, regulatory body, administrative
agency or other governmental instrumentality having
jurisdiction over the Servicer or its properties: (A)
asserting the invalidity of the Agreement or the Certificates;
(B) seeking to prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated by the
Agreement; (C) seeking any determination or ruling that might
materially and adversely affect the performance by the
Servicer of its obligations under, or the validity or
enforceability of, the Agreement or the Certificates; or (D)
relating to
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the Servicer and which might adversely affect the Federal
income tax attributes of the Certificates.
(vii) 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 the Servicer of
the Agreement and the Reimbursement Agreement, the performance
by the Servicer of the transactions contemplated by the
Agreement, the Reimbursement Agreement and the Certificates,
and the fulfillment by the Servicer of the terms hereof, have
been obtained; provided, however, that the Servicer makes no
representation or warranty regarding State securities or "blue
sky" laws in connection with the distribution of the
Certificates.
SECTION 17.2. Liability of Servicer; Indemnities. The
Servicer shall be liable in accordance herewith only to the extent of the
obligations specifically undertaken by the Servicer under the Agreement:
(i) The Servicer shall defend, indemnify and hold
harmless the Trustee (which for purposes of this Section 17.2
shall include its directors, officers, employees and agents),
the Trust, the Certificateholders and the Surety Bond Issuer
from and against any and all costs, expenses, losses, damages,
claims and liabilities, arising out of or resulting from the
use, ownership or operation by the Servicer or any affiliate
thereof of a Boat or RV.
(ii) The Servicer shall indemnify, defend and hold
harmless the Trustee, (which for purposes of this Section 17.2
shall include its directors, officers, employees and agents),
the Trust and the Surety Bond Issuer from and against any
taxes that may at any time be asserted against the Trustee,
the Trust or the Surety Bond Issuer with respect to the
transactions contemplated herein or in the Reimbursement
Agreement, including, without limitation, any sales, gross
receipts, general corporation, tangible personal property,
privilege or license taxes (but, in the case of the Trust, not
including any taxes asserted with respect to, and as of the
date of, the sale of the Receivables to the Trust or the
issuance and original sale of the Certificates, or asserted
with respect to ownership of the Receivables, or Federal or
other income taxes arising out of distributions on the
Certificates) and costs and expenses in defending against the
same.
(iii) The Servicer shall indemnify, defend and hold
harmless the Trustee (which for purposes of this Section 17.2
shall include its directors, officers, employees and agents),
the Trust, and the Certificateholders from and against any and
all costs, expenses, losses, claims, damages and liabilities
to the extent that such cost, expense, loss, claim, damage or
liability arose out of, or was imposed upon the Trustee, the
Trust, the Surety Bond Issuer or the
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Certificateholders through, the negligence, willful
misfeasance or bad faith of the Servicer in the performance of
its duties under the Agreement or the Reimbursement Agreement
or by reason of reckless disregard of its obligations and
duties under the Agreement or the Reimbursement Agreement.
(iv) The Servicer shall indemnify, defend and hold
harmless the Trustee (which for purposes of this Section 17.2
shall include its directors, officers, employees and agents),
from and against all costs, expenses, losses, claims, damages
and liabilities arising out of or incurred in connection with
the acceptance or performance of the trusts and duties,
including any action by the Trustee at the direction of the
Servicer taken pursuant to Section 13.1, herein contained and
the trusts and duties contained in the Reimbursement
Agreement, except to the extent that such cost, expense, loss,
claim, damage or liability: (a) shall be due to the willful
misfeasance, bad faith or negligence (except for errors in
judgment) of the Trustee; (b) relates to any tax other than
the taxes with respect to which either the Depositor or the
Servicer shall be required to indemnify the Trustee; (c) shall
arise from Trustee's breach of any of its representation or
warranties set forth in Section 19.8; (d) shall be one as to
which the Depositor is required to indemnify the Trustee; or
(e) shall arise out of or be incurred in connection with the
acceptance or performance by the Trustee of the duties of
successor Servicer hereunder unless such cost, expense, loss,
claim, damage or liability was caused by the act or omission
of the predecessor Servicer.
For purposes of this Section 17.2, in the event of the
termination of the rights and obligations of NationsCredit Commercial (or any
successor thereto pursuant to Section 17.3) as Servicer pursuant to Section
18.1, or a resignation by such Servicer pursuant to the Agreement, such
Servicer shall be deemed to be the Servicer pending appointment of a successor
Servicer (other than the Trustee) pursuant to Section 18.2.
Indemnification under this Section 17.2 shall survive
termination of the Agreement and the resignation or removal of the Trustee and
shall include, without limitation, reasonable fees and expenses of counsel and
expenses of litigation. If the Servicer shall have made any indemnity payments
pursuant to this Section 17.2 and the recipient thereafter collects any of such
amounts from others, the recipient shall promptly repay such amounts to the
Servicer, without interest.
SECTION 17.3. Merger or Consolidation of, or Assumption of
the Obligations of the Servicer. Any Person (a) into which the Servicer may be
merged or consolidated, (b) which may result from any merger or consolidation
to which the Servicer shall be a party, or (c) which may succeed to the
properties and assets of the Servicer substantially as a whole, or any Person,
more than 50% of the voting stock of which is, directly or indirectly, owned by
NationsBank Corporation, which Person in each of the foregoing cases executed
an agreement of assumption to perform every obligation of the Servicer
hereunder and under the Reimbursement
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Agreement, shall be the successor to the Servicer under the Agreement without
further act on the part of any of the parties to the Agreement; provided,
however, that (i) immediately after giving effect to such transaction, no Event
of Default, and no event which, after notice or lapse of time or both, would
become an Event of Default shall have happened and be continuing, (ii) the
Servicer shall have delivered to the Trustee an Officer's Certificate and an
Opinion of Counsel each stating that such consolidation, merger or succession
and such agreement of assumption comply with this Section 17.3, and (iii) the
Servicer shall have delivered to the Trustee an Opinion of Counsel either (A)
stating that, in the opinion of such counsel, all financing statements and
continuation statements and amendments thereto have been executed and filed
that are necessary fully to preserve and protect the interest of the Trustee in
the Receivables, and reciting the details of such filings, or (B) stating that,
in the opinion of such counsel, no such action shall be necessary to preserve
and protect such interest. The Servicer shall provide notice of any merger,
consolidation or succession pursuant to this Section 17.3 to each Rating Agency
and the Surety Bond Issuer. Notwithstanding anything herein to the contrary,
the Servicer shall not consummate any transaction of a type referred to in
clauses (a), (b) or (c) above unless at or prior thereto the foregoing
agreement of assumption shall have been executed and the conditions described
in clauses (i), (ii) and (iii) shall have been satisfied.
SECTION 17.4. Limitation on Liability of Servicer and Others.
(a) Neither the Servicer nor any of the directors or officers or employees or
agents of the Servicer shall be under any liability to the Trust or the
Certificateholders, except as provided under the Agreement, for any action
taken or for refraining from the taking of any action pursuant to the
Agreement; provided, however, that this provision shall not protect the
Servicer or any such person against any liability that would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence in the
performance of duties or by reason of reckless disregard of obligations and
duties under the Agreement. The Servicer and any director or officer or
employee or agent of the Servicer may rely in good faith on any document of any
kind prima facie properly executed and submitted by any Person respecting any
matters arising under the Agreement.
(b) Except as provided in the Agreement, the Servicer
shall not be under any obligation to appear in, prosecute, or defend any legal
action that shall not be incidental to its duties to service the Receivables in
accordance with the Agreement, and that in its opinion may involve it in any
expense or liability; provided, however, that the Servicer may undertake any
reasonable action that it may deem necessary or desirable in respect of the
Agreement and the rights and duties of the parties to the Agreement and the
interests of the Certificateholders under the Agreement.
ARTICLE XVIII
Default
SECTION 18.1. Events of Default. (a) If any one of the
following events (each an "Event of Default") shall occur and be continuing:
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(i) Any failure by the Servicer to deliver to the
Trustee for distribution to Certificateholders any proceeds or
payment required to be so delivered under the terms of the
Certificates and the Agreement that shall continue unremedied
for a period of three Business Days after written notice from
the Trustee is received by the Servicer as specified in the
Agreement or after discovery of such failure by an officer of
the Servicer; or
(ii) any failure on the part of the Servicer or
the Depositor duly to observe or to perform in any material
respect any other covenants or agreements of the Servicer or
the Depositor (as the case may be) set forth in the
Certificates or in the Agreement, which failure shall (a)
materially adversely affects the rights of Certificateholders
as determined by the Holders of Certificates evidencing not
less than a majority of the Certificate Balance and (b)
continue unremedied for a period of 60 days after the date on
which written notice of such failure, requiring the same to be
remedied, shall have been given (1) to the Servicer or the
Depositor (as the case may be), by the Trustee, or (2) to the
Servicer or the Depositor (as the case may be) and to the
Trustee by the Surety Bond Issuer; or
(iii) The entry of a decree or order by a court or
agency or supervisory authority having jurisdiction in the
premises for the appointment of a conservator, receiver or
liquidator for the Servicer or the Depositor in any
bankruptcy, insolvency, readjustment of debt, marshaling of
assets and liabilities, or similar proceedings, or for the
winding up or liquidation of their respective affairs, and the
continuance of any such decree or order unstayed and in effect
for a period of 60 consecutive days; or
(iv) The consent by the Servicer or the Depositor
to the appointment of a conservator or receiver or liquidator
in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities, or similar proceedings
of or relating to the Servicer or the Depositor or relating to
substantially all their property; or the Servicer or the
Depositor shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization
statute, make an assignment for the benefit of its creditors,
or voluntarily suspend payment of its obligations; or
(v) Any representation or warranty by the
Servicer in the Agreement shall prove to have been incorrect
in any material respect when made, which continues to be
incorrect in any material respect for a period of 60 days
after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to
the Servicer by the Trustee, or to the Servicer and the
Trustee by the Surety Bond Issuer and as a result of which the
interests hereunder of Certificateholders are materially and
adversely affected;
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then, and in each and every case, so long as an Event of Default shall not have
been remedied, the Surety Bond Issuer, by notice then given in writing to the
Servicer may terminate all the rights and obligations of the Servicer under the
Agreement (a "Servicer Transfer").
(b) In addition to a Servicer Transfer effected pursuant
to clause (a) of this Section 18.1, the Surety Bond Issuer with notice in
writing to the Servicer, may effect a Servicer Transfer upon the occurrence of
any of the following events: (i) the Depositor or the Servicer, as the case may
be, shall fail to pay when due any amount payable by it hereunder or under the
Reimbursement Agreement which failure shall have continued for three (3)
Business Days after receipt of notice thereof by the Depositor or the Servicer,
as the case may be or (ii) the Surety Bond Issuer determines that the
performance of the Servicer is not, in the opinion of the Surety Bond Issuer,
in conformity with the Servicing Standards.
(c) On or after the receipt by the Servicer of such
written notice which effects a Servicing Transfer, all authority and power of
the Servicer under the Agreement, whether with respect to the Certificates or
the Receivables or otherwise, shall, without further action, pass to and be
vested in the Trustee or such successor Servicer as may be appointed under
Section 18.2 pursuant to and under this Section 18.1; and, without limitation,
the Trustee is hereby authorized and empowered to execute and deliver, on
behalf of the predecessor Servicer, as attorney-in-fact or otherwise, any and
all documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement of the
Receivables and related documents, or otherwise. The predecessor Servicer
shall cooperate with the successor Servicer and the Trustee in effecting the
termination of the responsibilities and rights of the predecessor Servicer
under the Agreement, including the transfer to the successor Servicer for
administration by it of all cash amounts that shall at the time be held by the
predecessor Servicer for deposit, or shall thereafter be received with respect
to a Receivable. All reasonable costs and expenses (including attorneys' fees
and disbursements) incurred in connection with transferring the Receivable
Files to the successor Servicer and amending the Agreement and the
Reimbursement Agreement to reflect such succession as Servicer pursuant to this
Section 18.1 shall be paid by the predecessor Servicer upon presentation of
reasonable documentation of such costs and expenses.
SECTION 18.2. Appointment of Successor. (a) Upon the
Servicer's receipt of notice of termination pursuant to Section 18.1 or the
Servicer's resignation in accordance with the terms of the Agreement, the
predecessor Servicer shall continue to perform its functions as Servicer under
the Agreement, in the case of termination, only until the date specified in
such termination notice or, if no such date is specified in a notice of
termination, until receipt of such notice and, in the case of resignation,
until the later of (x) the date 45 days from the delivery to the Trustee of
written notice of such resignation (or written confirmation of such notice of
resignation) in accordance with the terms of the Agreement and (y) the date
upon which the predecessor Servicer shall become unable to act as Servicer, as
specified in the notice of resignation and an accompanying Opinion of Counsel.
In the event of the Servicer's resignation or termination hereunder, a
successor Servicer appointed by the Trustee and consented to by the
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Surety Bond Issuer in writing which consent shall not be unreasonably withheld
or the Trustee (unless it is unwilling or legally unable to do so) will succeed
to all the responsibilities, duties and liabilities of the Servicer under the
Agreement and will be entitled to similar compensation arrangements. The
successor Servicer shall accept its appointment by a written assumption in form
acceptable to the Trustee and the Surety Bond Issuer. Notwithstanding the
above, the Trustee, if it is unwilling or unable so to act, shall appoint or
petition a court of competent jurisdiction to appoint, an established
institution, having a net worth of at least $50,000,000 and whose regular
business shall include the servicing of marine retail installment sale
contracts, as the successor to the Servicer under the Agreement.
(b) Upon appointment, the successor Servicer shall be the
successor in all respects to the predecessor Servicer and shall be subject to
all the responsibilities, duties and liabilities arising thereafter relating
thereto placed on the predecessor Servicer, and shall be entitled to the
Monthly Marine Servicing Fee and the Monthly RV Servicing Fee and other fees
payable to the Servicer pursuant to Sections 13.8 and 13.8A hereof, and all the
rights granted to the predecessor Servicer, by the terms and provisions of the
Agreement. No such appointment shall make the successor Servicer responsible
for any liabilities of the predecessor Servicer incurred prior to such
appointment or for any acts, omissions or misrepresentations of such
predecessor Servicer.
(c) In connection with such appointment, the Trustee may,
with the consent of the Surety Bond Issuer, make such arrangements for the
compensation of such successor Servicer out of payments on Receivables as it
and such successor Servicer shall negotiate on an arms-length basis, but in no
event shall the Servicing Fee Rate be greater than __% per annum.
SECTION 18.3. Notification to Certificateholders. Upon any
termination of, or appointment of a successor to, the Servicer pursuant to this
Article XVIII, the Trustee shall give prompt written notice thereof to
Certificateholders at their respective addresses appearing in the Certificate
Register and to each Rating Agency.
SECTION 18.4. Waiver of Past Defaults. So long as no Surety
Bond Issuer Default shall have occurred and be continuing, the Surety Bond
Issuer may, on behalf of all the Holders of Certificates, waive any default by
the Servicer in the performance of its obligations hereunder and its
consequences, except a default in making any required deposits to or payments
from the Certificate Account in accordance with the Agreement. Upon any such
waiver of a past default, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been remedied for every
purpose of the Agreement. No such waiver shall impair such Certificateholders'
rights or the Surety Bond Issuer's rights with respect to subsequent defaults.
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ARTICLE XIX
The Trustee
SECTION 19.1. Duties of Trustee. (a) The Trustee, both
prior to the occurrence of an Event of Default and after an Event of Default
shall have been cured or waived, shall undertake to perform only such duties as
are specifically set forth in the Agreement. If an Event of Default shall have
occurred and shall not have been cured or waived and, the Trustee has received
notice of such Event of Default pursuant to Section 13.10(b), the Trustee shall
exercise such of the rights and powers vested in it by the Agreement, and shall
use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs;
provided, however, that if the Trustee shall assume the duties of the Servicer
pursuant to Section 18.2, the Trustee in performing such duties shall use the
degree of skill and attention customarily exercised by a servicer with respect
to comparable receivables that it services for itself or others. For purposes
of this Article XIX, an Event of Default shall be deemed to have been cured
upon the appointment of a successor Servicer (including the Trustee in such
capacity).
(b) The Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee that shall be specifically required to be
furnished pursuant to any provision of the Agreement, shall examine them to
determine whether they conform to the requirements of the Agreement.
(c) The Trustee shall take and maintain custody of the
Schedule of Receivables included as an exhibit to the Agreement and shall
retain all Servicer's Certificates identifying Receivables that become
Purchased Receivables.
(d) No provision of the Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act (other than errors in judgment) or its own bad faith;
provided, however, that:
(i) Prior to the occurrence of an Event of
Default (or in the case of an Event of Default described in
clause (i) of Section 18.1, before the Trustee has received
notice of such Event of Default pursuant to Section 13.10(b)),
and after the curing or waiving of all such Events of Default
that may have occurred, the duties and obligations of the
Trustee shall be determined solely by the express provisions
of the Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as shall be
specifically set forth in the Agreement, no implied covenants
or obligations shall be read into the Agreement against the
Trustee and, in the absence of bad faith or willful
misfeasance on the part of the Trustee, the Trustee may
conclusively rely on the truth of the statements and the
correctness of the opinions expressed in any certificates or
opinions furnished to the Trustee and conforming to the
requirements of the Agreement;
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(ii) The Trustee shall not be liable for an error
of judgment made in good faith by a Trustee Officer, unless
it shall be proved that the Trustee shall have been negligent
in ascertaining the pertinent facts;
(iii) The Trustee shall not be liable with respect
to any action taken, suffered or omitted to be taken in good
faith in accordance with the Agreement or at the direction of
the Holders of Certificates evidencing not less than 25% of
the Certificate Balance relating to the time, method and place
of continuing any proceeding for any remedy available to the
Trustee, or relating to the exercise of any trust power
conferred upon the Trustee, under the Agreement;
(iv) The Trustee shall not be charged with
knowledge of any failure by the Servicer to comply with the
obligations of the Servicer referred to in clauses (i) or (ii)
of Section 18.1, or of any failure by the Depositor to comply
with the obligations of the Depositor referred to in clause
(ii) of Section 18.1, or of any incorrect representation or
warranty referred to in clause (v) of Section 18.1, unless a
Trustee Officer assigned to the Corporate Trust Office
receives written notice of such failure or incorrectness from
the Servicer or the Depositor, as the case may be, from the
Surety Bond Issuer or from the Holders of Certificates
evidencing not less than 25% of the Certificate Balance, it
being understood that knowledge of the Servicer or the
Servicer as custodian is not attributable to the Trustee;
(v) Without limiting the generality of this
Section 19.1 or Section 19.4, the Trustee shall have no duty
(i) to see to any recording, filing or depositing of the
Agreement or any agreement referred to therein or any
financing statement or continuation statement evidencing a
security interest in the Receivables or the Boats or RVs, as
applicable, or to see to the maintenance if any such recording
or filing or depositing or to any rerecording, refiling or
redepositing of any thereof, (ii) to see to any insurance of
the Boats or RVs, as applicable, or Obligors or to effect or
maintain any such insurance, (iii) to see to the payment or
discharge of any tax, assessment or other governmental charge
or any Lien or encumbrance of any kind owing with respect to,
assessed or levied against, any part of the Trust, (iv) to
confirm or verify the contents of any reports or certificates
of the Servicer delivered to the Trustee pursuant to the
Agreement believed by the Trustee to be genuine and to have
been signed or presented by the proper party or parties, (v)
to inspect the Boats or RVs, as applicable, at any time or
ascertain or inquire as to the performance or observance of
any of the Depositor's or the Servicer's representations,
warranties or covenants or the Servicer's duties and
obligations as Servicer and as custodian of the Receivable
Files under the Agreement, or (vi) to prepare or make any
filings with the Securities and Exchange Commission with
respect to the Trust; and
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(vi) The Trustee shall not be deemed to be a
fiduciary for the Surety Bond Issuer in its capacity as such,
and the Trustee's sole responsibility with respect to the
Surety Bond Issuer, in its capacity as such, shall be to
perform those duties with respect to the Surety Bond Issuer as
are specifically set forth herein and no implied covenants
shall be read into the Agreement against the Trustee with
respect to the Surety Bond Issuer.
(e) Neither the Trustee nor the Collateral Agent shall be
required to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties hereunder, and the Trustee shall have
no liability in connection with losses on Permitted Investments made pursuant
to this Agreement or in the exercise of any of its rights or powers, and none
of the provisions contained in the Agreement shall in any event require the
Trustee to perform, or be responsible for the manner of performance of, any of
the obligations of the Servicer under the Agreement except during such time, if
any, as the Trustee shall be the successor to, and be vested with the rights,
duties, powers and privileges of, the Servicer in accordance with the terms of
the Agreement.
(f) Notwithstanding anything to the contrary contained
herein, the Collateral Agent shall have the same rights, indemnities and
protections afforded the Trustee.
SECTION 19.2 Trustee's Certificate. On or as soon as
practicable after each Distribution Date on which Receivables shall be assigned
to the Depositor or the Servicer, as applicable, pursuant to Section 19.3, the
Trustee shall execute a Trustee's Certificate, based on the information
contained in the Servicer's Certificate for the related Collection Period,
amounts deposited to the Marine Collection Account and RV Collection Account
and notices received pursuant to the Agreement, identifying the Receivables
repurchased by the Depositor pursuant to Section 12.2, purchased by the
Servicer pursuant to Sections 13.7, 20.2 or 20.2A during such Collection
Period, and shall deliver such Trustee's Certificate, accompanied by a copy of
the Servicer's Certificate for such Collection Period to the Depositor or the
Servicer, as the case may be. The Trustee's Certificate submitted with respect
to such Distribution Date shall operate, as of such Distribution Date, as an
assignment, without recourse, representation or warranty, to the Depositor or
the Servicer, as the case may be, of all the Trustee's right, title and
interest in and to such repurchased Receivable, and all security and documents
relating thereto, such assignment being an assignment outright and not for
security.
SECTION 19.3. Trustee's Assignment of Purchased Receivables.
With respect to all Receivables repurchased by the Depositor pursuant to
Section 12.2 or purchased by the Servicer pursuant to Sections 13.7, 20.2 or
20A, the Trustee shall by a Trustee's Certificate assign, without recourse,
representation or warranty, to the Depositor or the Servicer (as the case may
be) all the Trustee's right, title and interest in and to such Receivables, and
all security interests and documents relating thereto.
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SECTION 19.4. Certain Matters Affecting Trustee. Except as
otherwise provided in Section 19.1:
(i) The Trustee may rely conclusively and shall
be protected in acting or refraining from acting upon any
resolution, Officer's Certificate, Servicer's Certificate,
certificate of auditors, or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order,
appraisal, bond, or other paper or document believed by it to
be genuine and to have been signed or presented by the proper
party or parties.
(ii) The Trustee may consult with counsel and any
advice or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or
suffered or omitted by it under the Agreement in good faith
and in accordance with such advice or Opinion of Counsel.
(iii) The Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by the
Agreement, or to institute, conduct or defend any litigation
under the Agreement or in relation to the Agreement, at the
request, order or direction of any of the Certificateholders
pursuant to the provisions of the Agreement, unless such
Certificateholders shall have offered to the Trustee security
or indemnity satisfactory to it against the costs, expenses
and liabilities that may be incurred therein or thereby.
(iv) The Trustee shall not be liable for any
action taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or
rights or powers conferred upon it by the Agreement.
(v) Prior to the occurrence of an Event of
Default (or in the case of an Event of Default described in
clause (i) of Section 18.1, before the Trustee has received
notice of such Event of Default pursuant to Section 13.10(b)),
and after the curing or waiving of all Events of Default that
may have occurred, the Trustee shall not be bound to make any
investigation into the facts of matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond, or
other paper or document, unless requested in writing so to do
by the Surety Bond Issuer or by Holders of Certificates
evidencing not less than 25% of the Certificate Balance;
provided, however, that if the payment within a reasonable
time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such
investigation shall be, in the opinion of the Trustee, not
assured to the Trustee by the security afforded to it by the
terms of the Agreement, the Trustee may require indemnity
satisfactory to it against such cost, expense or liability as
a condition to so proceeding. The expense of every such
examination shall be paid by the Servicer or, if paid by the
Trustee, shall be reimbursed by the Servicer upon demand.
Nothing in this clause
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(v) shall affect the obligation of the Servicer to observe any
applicable law prohibiting disclosure of information regarding
the Obligors.
(vi) The Trustee may execute any of the trusts or
powers hereunder or perform any duties under the Agreement
either directly or by or through agents or attorneys or a
custodian. The Trustee shall not be responsible for any
misconduct or negligence of any such agent or custodian
appointed with due care by it hereunder or of the Servicer in
its capacity as Servicer or custodian.
(vii) Subsequent to the sale of the Receivables by
the Depositor to the Trustee, on behalf of the Trust, the
Trustee shall have no duty of independent inquiry, except as
may be required by Section 19.1, and the Trustee may rely upon
the representations and warranties and covenants of the
Depositor and the Servicer contained in the Agreement with
respect to the Receivables and the Receivable Files.
SECTION 19.5. Trustee Not Liable for Certificates or
Receivables. (a) The recitals contained herein and in the Certificates (other
than the certificate of authentication on the Certificates) shall be taken as
the statements of the Depositor or the Servicer, as the case may be, and the
Trustee assumes no responsibility for the correctness thereof. The Trustee
shall make no representations as to the validity or sufficiency of the
Agreement or of the Certificates (other than the certificate of authentication
on the Certificates), or of any Receivable or related document.
(b) The Trustee shall at no time have any responsibility
or liability for or with respect to the legality, validity and enforceability
of any security interest in any Boat or RV or any Receivable, or the perfection
and priority of such a security interest or the maintenance of any such
perfection and priority, or for or with respect to the efficacy of the Trust or
its ability to generate the payments to be distributed to Certificateholders
under the Agreement, including, without limitation: the existence, condition,
location and ownership of any Boat or RV; the review of any Receivable File;
the existence and enforceability of any physical damage insurance thereon; the
existence and contents of any Receivable or Receivable File or any computer or
other record thereof; the validity of the assignment of any Receivable to the
Trust or of any intervening assignment; the completeness of any Receivable or
Receivable File; the performance or enforcement of any Receivable; the
compliance by the Depositor or the Servicer with any warranty or representation
made under the Agreement or in any related document and the accuracy of any
such warranty or representation prior to the Trustee's receipt of notice or
other discovery of any noncompliance therewith or any breach thereof; any
investment of monies by the Servicer or any loss resulting therefrom; the acts
or omissions of the Depositor, the Servicer or any Obligor; any action of the
Servicer taken in the name of the Trustee; or any action by the Trustee taken
at the instruction of the Servicer; provided, however, that the foregoing shall
not relieve the Trustee of its obligation to perform its duties under the
Agreement.
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(c) Except with respect to a claim based on the failure
of the Trustee to perform its duties under the Agreement or based on the
Trustee's negligence or willful misconduct, no recourse shall be had for any
claim based on any provision of the Agreement, the Certificates or any
Receivable or assignment thereof against the Trustee in its individual
capacity, the Trustee shall not have any personal obligation, liability or duty
whatsoever to any Certificateholder or any other Person with respect to any
such claim, and any such claim shall be asserted solely against the Trust or
any indemnitor who shall furnish indemnity as provided in the Agreement.
(d) The Trustee shall not be accountable for the use or
application by the Depositor of any of the Certificates or of the proceeds of
such Certificates, or for the use or application of any funds paid to the
Servicer in respect of the Receivables.
(e) Any obligation of the Trustee to give any notice or
statement to any rating agency hereunder shall constitute only a best efforts
obligation and such notice or statement shall be so provided only as a matter
of courtesy and accommodation, the Trustee having no liability to any rating
agency or any other Person for any failure to so provide such notice or
statement. The Depositor hereby certifies to the Trustee that each Rating
Agency is rating the Certificates and that each Rating Agency's address is as
set forth in Section 21.5. The Trustee may rely on the accuracy of such
certification until it receives from the Depositor an Officer's Certificate
superseding such certification.
SECTION 19 .6. Trustee May Own Certificates. The Trustee in
its individual or any other capacity may become the owner or pledgee of
Certificates and may deal with the Depositor and the Servicer in banking
transactions with the same rights as it would have if it were not Trustee.
SECTION 19.7. Trustee's Fees and Expenses. (a) The Servicer
shall pay to the Trustee, and the Trustee shall be entitled to, reasonable
compensation (which shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust) for all services rendered by
it and in the execution of the trusts created by the Agreement, and in the
exercise and performance of any of the Trustee's powers and duties under the
Agreement. The Servicer shall pay or reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances (including the
reasonable compensation and the expenses and disbursements of its counsel and
of all persons not regularly in its employ) incurred or made by the Trustee in
accordance with any provisions of the Agreement except any such expense,
disbursement or advance as may be attributable to its willful misfeasance,
negligence or bad faith.
(b) The Depositor shall indemnify the Trustee (which for
purposes of this subsection (b) shall include its directors, officers,
employees and agents) for, and shall hold it harmless against, any loss,
liability or expense incurred without willful misfeasance, negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of
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the Agreement and the Trust and the trusts created by the Reimbursement
Agreement, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties under the Agreement or the Reimbursement Agreement.
Additionally, the Depositor, pursuant to Section 16.2, and the Servicer,
pursuant to Section 17 .2, respectively, shall indemnify the Trustee with
respect to certain matters, and Certificateholders, pursuant to Section 19.4,
shall upon the circumstances therein set forth, indemnify the Trustee under
certain circumstances. In the event that the Depositor fails to pay the
amounts it is obligated to pay to the Trustee pursuant to this Section 19.7(b),
the Trustee shall be entitled to receive such amounts from the Monthly Marine
Servicing Fee and the Monthly RV Servicing Fee prior to the payment thereof to
the Servicer. The indemnification provided under this Section 19.7 shall
survive termination of the Agreement and removal or resignation of the Trustee.
SECTION 19.8. Representations and Warranties of Trustee. The
Trustee shall make the following representations and warranties on which the
Depositor and Certificateholders shall rely:
(i) The Trustee is a banking corporation duly
organized, validly existing and in good standing under the
laws of the State of New York.
(ii) The Trustee has full corporate power,
authority and legal right to execute, deliver and perform its
duties and obligations under the Agreement, and shall have
taken all necessary action to authorize the execution,
delivery and performance by it of the Agreement.
(iii) The Agreement shall have been duly executed
and delivered by the Trustee.
SECTION 19.9. Eligibility Requirements for Trustee. The
Trustee under the Agreement shall at all times: be a banking corporation having
an office in the same State as the location of the Corporate Trust Office as
specified in the Agreement; be organized and doing business under the laws of
such State or the United States of America; be authorized under such laws to
exercise corporate trust powers; have a combined capital and surplus of at
least $50,000,000; and be subject to supervision or examination by Federal or
State authorities.
If the Trustee shall publish reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purpose of this Section 19.9, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section l9.9, the Trustee shall resign
immediately in the manner and with the effect specified in Section 19.10.
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SECTION 19.10. Resignation or Removal of Trustee. (a) The
Trustee and the Collateral Agent may at any time resign and be discharged from
the trusts hereby created by giving not less than 60 days' prior written notice
thereof to the Servicer; provided, however, that any such resignation in either
capacity shall be deemed a resignation as both Trustee and Collateral Agent.
In the event the Trustee and Collateral Agent resigns, the resigning Trustee
and Collateral Agent shall pay the initial costs and fees of the successor
Trustee and Collateral Agent. Upon receiving notice of resignation, the
Servicer with the consent of the Surety Bond Issuer (unless a Surety Bond
Issuer Default shall have occurred and be continuing) shall promptly appoint a
successor Trustee and Collateral Agent by written instrument, in duplicate, one
copy of which instrument shall be delivered to the resigning Trustee and
Collateral Agent and one copy to the successor Trustee and Collateral Agent.
If no successor Trustee and Collateral Agent shall have been so appointed and
have accepted appointment within 60 days after the giving of such notice of
resignation, the resigning Trustee and Collateral Agent may petition any court
of competent jurisdiction for the appointment of a successor Trustee and
Collateral Agent.
(b) If at any time the Trustee shall cease to be eligible
in accordance with the provisions of Section 19.9 and shall fail to resign
after written request there for by the Servicer, or if at any time the Trustee
shall be legally unable to act, or shall be adjudged as bankrupt or insolvent,
or a receiver of the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation, conservation or liquidation, then
the Servicer may remove the Trustee and Collateral Agent. If it shall remove
the Trustee and Collateral Agent under the authority of the immediately
preceding sentence, the Servicer shall promptly appoint a successor trustee and
collateral agent acceptable to the Surety Bond Issuer by written instrument, in
duplicate, one copy of which instrument shall be delivered to the Trustee and
Collateral Agent so removed and one copy to the successor Trustee and
Collateral Agent.
(c) Any resignation or removal of the Trustee and
Collateral Agent and appointment of a successor Trustee and Collateral Agent
pursuant to any of the provisions of this Section 19.10 shall not become
effective until acceptance of appointment by the successor Trustee pursuant and
Collateral Agent pursuant to Section 19.11 and payment of all fees and expenses
owed to the outgoing Trustee and Collateral Agent. The Servicer shall provide
notice of such resignation or removal of the Trustee to each Rating Agency.
SECTION 19.11. Successor Trustee and Collateral Agent. (a)
Any successor Trustee or Collateral Agent appointed pursuant to Section 19.10
be approved as both Trustee and Collateral Agent and shall execute, acknowledge
and deliver to the Servicer and to its predecessor Trustee and Collateral Agent
an instrument accepting such appointment under the Agreement, and thereupon the
resignation or removal of the predecessor Trustee and Collateral Agent shall
become effective and such successor Trustee and Collateral Agent, without any
further act, deed or conveyance, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor under the Agreement, with
like effect as if originally named as
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Trustee and Collateral Agent. The predecessor Trustee and Collateral Agent
shall deliver to the successor Trustee and Collateral Agent all documents,
statements and monies held by it under the Agreement; and the Servicer and the
predecessor Trustee and Collateral Agent shall execute and deliver such
instruments and do such other things as may reasonably be required for fully
and certainly vesting and confirming in the successor Trustee and Collateral
Agent all such rights, powers, duties and obligations.
(b) No successor Trustee and Collateral Agent shall
accept appointment as provided in this Section 19.11, unless at the time of
such acceptance such successor Trustee shall be eligible pursuant to Section
19.9.
(c) Upon acceptance of appointment by a successor Trustee
and Collateral Agent pursuant to this Section 19.11, the Servicer shall mail
notice of the successor of such Trustee and Collateral Agent under the
Agreement to all Holders of Certificates at their addresses as shown in the
Certificate Register. If the Servicer shall fail to mail such notice within 10
days after acceptance of appointment by the successor Trustee and Collateral
Agent, the successor Trustee and Collateral Agent shall cause such notice to be
mailed at the expense of the Servicer.
SECTION 19.12. Merger or Consolidation of Trustee. Any
corporation into which the Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be eligible pursuant to Section 19.9, without the execution
or filing of any instrument or any further act on the part of any of the
parties hereto; anything herein to the contrary notwithstanding.
SECTION 19.13. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of the Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust or any Boat may at the time be located, the Servicer and the
Trustee acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Trustee to act as
co-trustee, jointly with the Trustee, or separate trustee or separate trustees,
of all or any part of the Trust, and to vent in such Person, in such capacity
and for the benefit of the Certificateholders, such title to the Trust, or any
part thereof, and, subject to the other provisions of this Section 19.13, such
powers, duties, obligations, rights and trusts as the Servicer and the Trustee
may consider necessary or desirable. If the Servicer shall not have joined in
such appointment within 15 days after the receipt by it of a request so to do,
or in the case an Event of Default shall have occurred and be continuing, the
Trustee alone shall have the power to make such appointment. No co-trustee or
separate trustee under the Agreement shall be required to meet the terms of
eligibility as a successor trustee pursuant to Section 19.9 and no notice of a
successor trustee pursuant to Section 19.11 and no notice to Certificateholders
of the appointment of any co-trustee or separate trustee shall be required
pursuant to Section 19.11.
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(b) Each separate trustee and co-trustee shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) All rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred upon
and exercised or performed by the Trustee and such separate
trustee or co-trustee jointly (it being understood that such
separate trustee or co trustee is not authorized to act
separately without the Trustee joining in such act), except to
the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed (whether as Trustee
under the Agreement or as successor to the Servicer under the
Agreement), the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the
Trust or any portion thereof in any such jurisdiction) shall
be exercised and performed singly by such separate trustee or
co-trustee, but solely at the direction of the Trustee;
(ii) No trustee under the Agreement shall be
personally liable by reason of any act or omission of any
other trustee under the Agreement; and
(iii) The Servicer and the Trustee acting jointly
may at any time accept the resignation of or remove any
separate trustee or co-trustee.
(c) Any notice, request or other writing given to the
Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to the
Agreement and the conditions of this Article XIX. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trusts or separately, as may be provided therein, subject to
all the provisions of the Agreement, specifically including every provision of
the Agreement relating to the conduct of, affecting the liability of, or
affording protection to the Trustee. Each such instrument shall be filed with
the Trustee and a copy thereof given to the Servicer.
(d) Any separate trustee or co-trustee may at any time
appoint the Trustee, its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect of the Agreement on its behalf and in its name. If any separate
trustee or co-trustee shall become incapable of acting, resign or be removed,
all its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee. Notwithstanding anything to the
contrary in the Agreement, the appointment of any separate trustee or
co-trustee shall not relieve the Trustee of its obligations and duties
hereunder.
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ARTICLE XX
Termination
SECTION 20.1. Termination of the Trust. (a) The respective
obligations and responsibilities of the Depositor, the Servicer, the Trustee
and the Trust created hereby shall terminate upon (i) the payment in full or
other liquidation of the last Receivable and the disposition of any amounts
received upon liquidation of any remaining Receivables, including Defaulted
Receivables, (ii) the payment to the Certificateholders of all amounts required
to be paid to them pursuant to the Agreement and the payment to the Surety Bond
Issuer of all amounts required to be paid to it pursuant to the Agreement and
the Reimbursement Agreement and disposition of all property held by the Trust
or (iii) the purchase as of the last day of any Collection Period by the
Servicer at its option, pursuant to Section 20.2 or 20.2A of the remaining
corpus of the Trust; provided, however, that in no event shall the trust
created by the Agreement continue beyond the expiration of 21 years from the
date hereof. The Servicer shall promptly notify the Trustee of any prospective
termination pursuant to this Section 20.1.
(b) Notice of any termination, specifying the
Distribution Date upon which the Certificateholders may surrender their
Certificates to the Trustee for payment of the final distribution and
cancellation, shall be given promptly by the Trustee by letter to
Certificateholders mailed not earlier than the 15th day and not later than the
25th day of the month next preceding the specified Distribution Date stating
(A) the Distribution Date upon which final payment of the Certificates shall be
made upon presentation and surrender of the Certificates at the office of the
Trustee therein designated, (B) the amount of any such final payment, and (C)
if applicable, that the Record Date otherwise applicable to such Distribution
Date is not applicable, payments being made only upon presentation and
surrender of the Certificates at the office of the Trustee therein specified.
The Trustee shall give such notice to the Certificate Registrar (if other than
the Trustee) at the time such notice is given to Certificateholders. Upon
presentation and surrender of the Certificates, the Trustee shall cause to be
distributed to Certificateholders amounts distributable on such Distribution
Date pursuant to Section 14.5.
(c) In the event that all the Certificateholders shall
not surrender their Certificates for cancellation within six months after the
date specified in the above-mentioned written notice, the Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within one year after the second notice all the Certificates shall
not have been surrendered for cancellation, the Trustee may take appropriate
steps, or may appoint an agent to take appropriate steps, to contact the
remaining Certificateholders concerning surrender of their Certificates, and
the cost thereof shall be paid out of the funds and other assets that shall
remain subject to the Agreement. Any funds remaining in the Trust after
exhaustion of such remedies shall be distributed by the Trustee upon written
direction of the Servicer delivered to the Trustee to the United Way of
Metropolitan Dallas.
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As soon as practicable after the Distribution Date specified
for the final distribution or upon such other date upon which all amounts to be
paid to Certificateholders pursuant to the Agreement have been paid, the
Trustee shall deliver a letter to the Surety Bond Issuer in substantially the
form of Exhibit C to the Surety Bond.
SECTION 20.2. Optional Purchase of All Marine Receivables.
On the last day of any Collection Period as of which the Pool Balance shall
decline to __% or less of the Original Marine Pool Balance, the Servicer shall
have the option to purchase the corpus of the Trust. To exercise such option,
the Servicer shall deposit pursuant to Section 14.4 in the Marine Collection
Account, an amount equal to the aggregate Purchase Amount for the Marine
Receivables, as of the beginning of the Collection Period related to such
Record Date plus the appraised value of any other property held by the Trust
less the amount of all Collections, any amounts referred to in clause (ii) of
the definition of Marine Available Funds, and Liquidation Proceeds received by
the Servicer during such Collection Period, and shall succeed to all interests
in and to the Trust; provided, however, that without the consent of the Surety
Bond Issuer the Servicer may not make any such purchase if, after giving effect
to such purchase and the distributions on the related Distribution Date there
would be outstanding amounts under the Reimbursement Agreement and the
Agreement, which have not been paid to the Surety Bond Issuer.
SECTION 20.2A. Optional Purchase of All RV Receivables. On
the last day of any Collection Period as of which the Pool Balance shall
decline to __% or less of the Original RV Pool Balance, the Servicer shall have
the option to purchase the corpus of the Trust. To exercise such option, the
Servicer shall deposit pursuant to Section 14.4A in the RV Collection Account,
an amount equal to the aggregate Purchase Amount for the RV Receivables, as of
the beginning of the Collection Period related to such Record Date plus the
appraised value of any other property held by the Trust less the amount of all
Collections, any amounts referred to in clause (ii) of the definition of RV
Available Funds, and Liquidation Proceeds received by the Servicer during such
Collection Period, and shall succeed to all interests in and to the Trust;
provided, however, that without the consent of the Surety Bond Issuer the
Servicer may not make any such purchase if, after giving effect to such
purchase and the distributions on the related Distribution Date there would be
outstanding amounts under the Reimbursement Agreement and the Agreement, which
have not been paid to the Surety Bond Issuer.
ARTICLE XXI
Miscellaneous Provisions
SECTION 21.1. Amendment. (a) The Agreement may be amended
by the Depositor, the Servicer and the Trustee, without the consent of the
Certificateholders or the Surety Bond Issuer, to cure any ambiguity, to correct
or supplement any provisions in the Agreement, or to add any other provisions
with respect to matters or questions arising under the Agreement that shall not
be inconsistent with the provisions of the Agreement; provided,
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however, that such action will not, in the opinion of counsel satisfactory to
the Trustee, materially and adversely affect the interest of any
Certificateholder or the Surety Bond Issuer.
(b) The Agreement may also be amended by the Depositor,
the Servicer and the Trustee, with the consent of the Surety Bond Issuer and
the Holders of Certificates (which consent of any Holder of a Certificate given
pursuant to this Section 21.1 or pursuant to any other provision of the
Agreement shall be conclusive and binding on such Holder and on all future
Holders of such Certificate and of any Certificate issued upon the transfer
thereof or in exchange thereof or in lieu thereof whether or not notation of
such consent is made upon the Certificate) evidencing not less than 51% of the
Certificate Balance as of the most recent Record Date, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Agreement, or of modifying in any manner the rights of the
Certificateholders or the Surety Bond Issuer; provided, however, that no such
amendment may (i) increase or reduce in any manner the amount of, or accelerate
or delay the timing of, Collections of payments on the Marine Receivables or
the RV Receivables or distributions that are required to be made on any
Certificate, or (ii) reduce the aforesaid percentage required to consent to any
such amendment, in each case without the consent of the holders of all
Certificates then outstanding.
(c) Prior to the execution of any such amendment or
consent, the Servicer shall furnish written notification of the substance of
such amendment or consent to each Rating Agency. Promptly after the execution
of any such amendment or consent, the Trustee shall forward such written
notification provided to the Trustee by the Servicer of the substance of such
amendment or consent to each Certificateholder.
(d) It shall not be necessary for the consent of
Certificateholders pursuant to this Section 21.1 to approve the particular form
of any proposed amendment or consent, but it shall be sufficient if such
consent shall approve the substance thereof. The manner of obtaining such
consents and of evidencing the authorization of the execution thereof by
Certificateholders shall be subject to such reasonable requirements as the
Trustee may prescribe, including the establishment of record dates pursuant to
the Depository Agreement.
(e) Prior to the execution of any amendment to the
Agreement, the Trustee shall be entitled to receive and rely upon an Opinion of
Counsel stating that the execution of such amendment is authorized or permitted
by the Agreement and the Opinion of Counsel referred to in Section
21.2(h)(i)(1). The Trustee may, but shall not be obligated to, enter into any
such amendment which affects the Trustees own rights, duties or immunities
under the Agreement or otherwise.
(f) The provisions combined in clauses (a) and (b) of
this Section 21.1 shall not apply to an amendment to the definition of
"Specified Marine Reserve Account Requirement" or "Specified RV Reserve Account
Requirement."
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SECTION 21.2. Protection of Title to Trust. (a) The
Depositor shall execute and file such financing statements and cause to be
executed and filed such continuation statements, all in such manner and in such
places as may be required by law fully to preserve, maintain and protect the
interest of the Certificateholders and the Trustee in the Receivables and in
the proceeds thereof. The Depositor shall deliver (or cause to be delivered)
to the Trustee file-stamped copies of, or filing receipts for, any document
filed as provided above, as soon as available following such filing.
(b) Neither the Depositor nor the Servicer shall change
its name, identity or corporate structure in any manner that would, could or
might make any financing statement or continuation statement filed by the
Depositor in accordance with paragraph (a) above seriously misleading within
the meaning of Section 9-402(7) of the UCC, unless it shall have given the
Trustee at least 30 days' prior written notice thereof and shall have promptly
filed appropriate amendments to all previously filed financing statements or
continuation statements.
(c) The Depositor and the Servicer shall give the Trustee
at least 30 days' prior written notice of any relocation of its principal
executive office if, as a result of such relocation, the applicable provisions
of the UCC would require the filing of any amendment of any previously filed
financing or continuation statement or of any new financing statement, and
shall promptly file any such amendment. The Servicer shall at all times
maintain each office from which it shall service Receivables, and its principal
executive office, within the United States of America.
(d) The Servicer shall maintain accounts and records as
to each Receivable accurately and in sufficient detail to permit (i) the reader
thereof to know at any time the status of such Receivable, including payments
and recoveries made and payments owing (and the nature of each) and (ii)
reconciliation between payments or recoveries on (or with respect to) each
Receivable and the amounts from time to time deposited in the Marine Collection
Account or RV Collection Account, as applicable, in respect of such Receivable.
(e) The Servicer shall maintain its computer systems so
that, from and after the time of sale under the Agreement of the Receivables to
the Trustee, the Servicer's master computer records (including any back-up
archives) that refer to a Receivable shall indicate clearly with reference to
the particular grantor trust that such Receivable is owned by the Trustee.
Indication of the Trustee's ownership of a Receivable, on behalf of the Trust,
shall be deleted from or modified on the Servicer's computer systems when, and
only when, the Receivable shall have been paid in full or repurchased.
(f) If at any time the Depositor or the Servicer shall
propose to sell, grant a security interest in, or otherwise transfer any
interest in marine receivables to any prospective purchaser, lender or other
transferee, the Servicer shall give to such prospective purchaser, lender or
other transferee computer tapes, records or print-outs (including any restored
from back-up
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archives) that, if they shall refer in any manner whatsoever to any Receivable,
shall indicate clearly that such Receivable has been sold and is owned by the
Trustee.
(g) The Servicer shall permit the Trustee and its agents
at any time during normal business hours to inspect, audit and make copies of
and abstracts from the Servicer's records regarding any Receivable.
(h) Upon request, the Servicer shall furnish to the
Trustee, within five Business Days, a list of all Receivables (by contract
number and name of Obligor) then held as part of the Trust, together with a
reconciliation of such list to the Schedule of Receivables and to each of the
Servicer's Certificates furnished before such request indicating removal of
Receivables from the Trust.
(i) The Servicer shall deliver to the Trustee:
(1) promptly after the execution and delivery of
the Agreement and of each amendment thereto, an Opinion of
Counsel either (a) stating that, in the opinion of such
counsel, all financing statements and continuation statements
have been executed and filed that are necessary fully to
preserve and protect the interest of the Trustee in the
Receivables, and reciting the details of such filings or
referring to prior Opinions of Counsel in which such details
are given, or (b) stating that, in the opinion of such
counsel, no such action shall be necessary to preserve and
protect such interest; and
(2) within 90 days after the beginning of each
calendar year beginning with the first calendar year beginning
more than three months after the Cutoff Date, an Opinion of
Counsel, dated as of a date during such 90-day period, either
(a) stating that, in the opinion of such counsel, all
financing statements and continuation statements have been
executed and filed that are necessary fully to preserve and
protect the interest of the Trustee, on behalf of the Trust,
in the Receivables, and reciting the details of such filings
or referring to prior Opinions of Counsel in which such
details are given, or (b) stating that, in the opinion of such
counsel, no such action shall be necessary to preserve and
protect such interest.
Each Opinion of Counsel referred to in clause (i)(l) or (i)(2)
above shall specify any action necessary (as of the date of such opinion) to be
taken in the following year to preserve and protect such interest.
(j) The Depositor shall, to the extent required by
applicable law, cause the Certificates to be registered with the Securities and
Exchange Commission pursuant to Section 12(b) or Section 12(g) of the
Securities Exchange Act of 1934, as amended, within the time
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periods specified in such sections, and shall prepare and make all filings
required by such Act with respect to the Trust.
(k) For the purpose of facilitating the execution of the
Agreement and for other purposes, the Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to be
an original, and all of which counterparts shall constitute but one and the
same instrument.
SECTION 21.3. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not operate to
terminate the Agreement or the Trust, nor entitle such Certificateholder's
legal representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the
Trust, nor otherwise affect the rights, obligations and liabilities of the
parties to the Agreement or any of them.
(b) No Certificateholder shall have any right to vote
(except as provided in Section 21.1 or 18.4) or in any manner otherwise control
the operation and management of the Trust, or the obligations of the parties to
the Agreement, nor shall anything in the Agreement set forth or contained in
the terms of the Certificates, be construed so as to constitute the
Certificateholders from time to time as partners or members of an association;
nor shall any Certificateholder be under any liability to any third person by
reason of any action taken pursuant to any provision of the Agreement.
(c) No Certificateholder shall have any right by virtue
or by availing itself of any provisions of the Agreement to institute any suit,
action or proceeding in equity or at law upon or under or with respect to the
Agreement, unless such Holder previously shall have given to the Trustee a
written notice of default and of the continuance thereof, as hereinbefore
provided, and unless also the Holders of Certificates evidencing not less than
25% of the Certificate Balance shall have made written request upon the Trustee
to institute such action, suit or proceeding in its own name as Trustee under
the Agreement and shall have offered to the Trustee such reasonable indemnity
as it may require against the costs, expenses and liabilities to be incurred
therein or thereby, and the Trustee, for 30 days after its receipt of such
notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding and during such 30-day period no
direction inconsistent with such written request has been given to the Trustee
pursuant to this Section 21.3 or Section 18.4; no one or more Holders of
Certificates shall have any right in any manner whatever by virtue or by
availing itself or them selves of any provisions of the Agreement to affect,
disturb or prejudice the rights of the Holders of any other of the
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right, under the Agreement except in the
manner provided in the Agreement and for the equal, ratable and common benefit
of all Certificateholders. For the protection and enforcement of the
provisions of this Section 21.3, each Certificateholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
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SECTION 21.4. GOVERNING LAW. THE AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES UNDER THE AGREEMENT SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 21.5. Notices. All demands, notices and
communications under the Agreement shall be in writing, personally delivered or
mailed by certified mail, return receipt requested, or by overnight courier or
telecopied (with the original followed by mail within 24 hours) and shall be
deemed to have been duly given upon receipt (a) in the case of the Depositor,
to the agent for service as specified in the Agreement, at the following
address: NationsCredit Securitization Corporation, 000 X. Xxxx Xxxxxxxxx
Xxxxxxx, Xxxxxx, Xxxxx 00000, Telecopy (000) 000-0000, or at such other address
as shall be designated by the Depositor in a written notice to the Trustee, (b)
in the case of the Servicer, to the agent for service as specified in the
Agreement, at the following address: NationsCredit Commercial Corporation of
America, 000 X. Xxxx Xxxxxxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000, Telecopy (972)
506-5096, or at such other address as shall be designated by the Servicer in a
written notice to the Trustee, (c) in the case of the Trustee, at the Corporate
Trust Office, Telecopy (000) 000-0000 and (d) in the case of the Surety Bond
Issuer, at the following address: Capital Markets Assurance Corporation, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Managing Director-Credit
Enhancement, Telecopy (000) 000-0000. Any notice required or permitted to be
mailed to a Certificateholder shall be given by first class mail, postage
prepaid, at the address of such Holder as shown in the Certificate Register.
Any notice so mailed within the time prescribed in the Agreement shall be
conclusively presumed to have been duly given, whether or not the
Certificateholder shall receive such notice. All communications and copies of
all notices and reports from the Trustee or the Servicer shall be mailed to
each Rating Agency at the following addresses:
Xxxxx'x Investors Services, Inc.
00 Xxxxxx Xxxxxx (0xx Xxxxx)
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: ABS Monitoring Department
Standard & Poor's Ratings Services
00 Xxxxxxxx (x0xx Xxxxx)
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Asset-Backed Surveillance Group
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SECTION 21.6. Severability of Provisions. If any or more of
the covenants, agreements, provisions or terms of the Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of the Agreement and shall in no way affect the validity or
enforceability of the other provisions of the Agreement or of the Certificates
or the rights of the Holders thereof.
SECTION 21.7. Assignment. Notwithstanding anything to the
contrary contained herein, except as provided in Sections 16.3 and 17.3 and as
provided in the provisions of the Agreement concerning the resignation of the
Servicer, the Agreement may not be assigned by the Depositor or the Servicer
without the prior written consent of the Trustee, the Holders of Certificates
evidencing not less than 66% of the Certificate Balance and the Surety Bond
Issuer, provided that the consent of Surety Bond Issuer shall not be
unreasonably withheld.
SECTION 21.8. Certificates Nonassessable and Fully Paid.
Certificateholders shall not be personally liable for obligations of the Trust.
The interests represented by the Certificates shall be nonassessable for any
losses or expenses of the Trust or for any reason whatsoever, and, upon
authentication thereof by the Trustee pursuant to Section 15.2 or 15.3,
Certificates shall be deemed fully paid.
SECTION 21.9. No Petition. Neither the Trustee nor the
Servicer will not institute against, or join any other Person in instituting
against, the Depositor or the Trust 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 21.10. Surety Bond Issuer as Controlling Party. Each
Certificateholder by purchase of the Certificates held by it acknowledges that
the Trustee on behalf of the Trust, as partial consideration of the issuance of
the Surety Bond, has agreed that the Surety Bond Issuer shall have certain
rights hereunder for so long as no Surety Bond Issuer Default shall have
occurred and be continuing. Notwithstanding anything to the contrary contained
herein, but subject to the last sentence of this Section 21.10, so long as a
Surety Bond Issuer Default has occurred and is continuing, any provision giving
the Surety Bond Issuer the right to direct, appoint or consent to, approve of,
or take any action under this Agreement shall be inoperative during the period
of such Surety Bond Issuer Default and such right (other than any rights
pursuant to Section 18.1 (b)) shall instead vest in the Trustee acting at the
direction of Certificateholders evidencing in the aggregate not less than a
majority of the Certificate Balance as of the most recent Record Date. The
Surety Bond Issuer may disclaim any of its rights and powers under this
Agreement (but not its duties and obligations under the Surety Bond or the
Reimbursement Agreement) upon delivery of a written notice to the Trustee. The
Surety Bond Issuer may give or withhold any consent hereunder in its reasonable
discretion. In the event that the Servicer substitutes a new surety bond for
the Surety Bond pursuant to Section 14A.4, the new surety bond issuer shall
have all of the rights to direct, appoint or consent to, approve of, or
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take any action under this Agreement vested in the Surety Bond Issuer
immediately prior to the occurrence of the downgrading of the Surety Bond
Issuer as set forth in Section 14A.4
SECTION 21.11. Indemnification. With respect to any requirements
for indemnification under this Agreement, promptly after receipt by an
indemnified party 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, notify the indemnifying party in writing of the
commencement thereof; but the omission to so notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party.
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EXHIBIT A - FORM OF SURETY BOND_
X-0
00
XXXXXXX X-0: FORM OF MARINE CERTIFICATE
[Front]
NATIONSCREDIT GRANTOR TRUST 1997-2
NATIONSCREDIT GRANTOR TRUST 1997-2 ____% MARINE
RECEIVABLE-BACKED CERTIFICATE
evidencing a fractional undivided interest in the
Trust, as defined below, the property of which
includes a pool of retail installment sale contracts
secured by new and used boats, boat motors and boat
trailers, and sold or caused to be sold to the Trust
by NationsCredit Securitization Corporation.
(This Certificate does not represent an interest in
or obligation of NationsCredit Commercial Corporation
of America, NationsCredit Securitization Corporation
or any affiliate thereof, except to the extent
described below.)
NUMBER CUSIP
FINAL SCHEDULED DISTRIBUTION
DATE: $________________
THIS CERTIFIES THAT _________________is the registered owner
of a $________ dollars nonassessable, fully-paid, fractional undivided interest
in the NationsCredit Grantor Trust 1997-2 (the "Trust") formed by NationsCredit
Securitization Corporation, a Delaware corporation (the "Depositor"). The
Trust was created pursuant to a Pooling and Servicing Agreement, including the
Standard Terms and Conditions of Agreement incorporated by reference therein,
dated as of __________, 1997 (the "Agreement") among the Depositor,
NationsCredit Commercial Corporation of America, as Servicer, and Bankers Trust
Company, as Trustee (the "Trustee") and as Collateral Agent (the "Collateral
Agent"), a summary of certain of the pertinent provisions of which is set forth
below. To the extent not otherwise defined herein, the capitalized terms used
herein have the meanings assigned to them in the Agreement. This Certificate
is one of the duly authorized Certificates designated as "NationsCredit Grantor
Trust 1997-2 ____% Marine Receivable-Backed Certificates" (herein called the
"Certificates"). This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement, as amended from
time to time, the holder of this Certificate by virtue of the acceptance hereof
assents and by which such holder is bound. The property of the
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Trust includes a pool of retail installment sale contracts (the "Receivables")
secured by new and used boats, boat motors and boat trailers ("Boats"), all
payments (other than late fees and certain other amounts) received thereunder,
in the case of Simple Interest Receivables, and due thereunder, in the case of
Precomputed Receivables after __________, 1997, the interest of the Depositor
in the security interests in the Boats, such amounts as may be held from time
to time in certain trust accounts, the Surety Bond, any property that shall
have secured a Receivable and that shall have been acquired by the Trustee, the
Purchase Agreement, proceeds from claims on physical damage, credit life and
disability insurance policies covering Boats, or the Obligors as the case may
be, the interests of the Depositor in any proceeds from recourse to Dealers on
the Receivables, and the proceeds of all of the foregoing.
Under the Agreement, there will be distributed on the 15th day
of each month or, if such 15th day is not a Business Day, the next Business Day
(the "Distribution Date"), commencing on ________________, to the person in
whose name this Certificate is registered at the close of business on the
Business Day prior to such Distribution Date (the "Record Date"), such
Certificateholder's fractional undivided interest in the Monthly Interest
Payment, any Carry-Over Monthly Interest, the Monthly Principal Payment and any
Carry-Over Monthly Principal, all as more specifically set forth in the
Agreement. On the Final Scheduled Distribution Date, each Certificateholder
shall be entitled to receive an amount equal to the Monthly Interest Payment
and an amount necessary to reduce the Certificate Balance to zero.
Distributions on this Certificate will be made by the Trustee
by check mailed to the Person entitled thereto without the presentation or
surrender of this Certificate or the making of any notation hereon. Except as
otherwise provided in the Agreement and notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Trustee
of the pendency of such distribution and only upon presentation and surrender
of this Certificate at the office or agency maintained for that purpose by the
Trustee in the Borough of Manhattan, The City of New York.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
[Unless this Certificate is presented by an authorized
representative of The Depository Trust Company to the Trustee or its agent for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of CEDE & CO. or such other name as requested by an
authorized representative of The Depository Trust Company and any payment is
made to CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof,
CEDE & CO., has an interest herein.]
B-2
84
Unless the certificate of authentication hereon shall have
been executed by an authorized officer of the Trustee, by manual or facsimile
signature, this Certificate shall not entitle the holder hereof to any benefit
under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee on behalf of the Trust and not
in its individual capacity has caused this Certificate to be duly executed.
DATED: NATIONSCREDIT GRANTOR
TRUST 1997-2
By: BANKERS TRUST COMPANY,
as Trustee
By:
--------------------------
Name:
Title:
Authenticated:
BANKERS TRUST COMPANY,
as Trustee
By:
--------------------------
Name:
Title:
B-3
85
[Reverse]
The Certificates do not represent an obligation of, or an
interest in, the Depositor, the Servicer, the Trustee or any affiliate of any
of them. The Certificates are limited in right of payment as more specifically
set forth in the Agreement. A copy of the Agreement may be examined during
normal business hours at the principal office of the Depositor, and at such
other places, if any, designated by the Depositor, by any Certificateholder
upon request.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the rights of the Certificateholders under the
Agreement at any time by the Depositor and the Trustee with the consent of the
Surety Bond Issuer and without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies maintained by the Trustee in its
capacity as Certificate Registrar, or by any successor Certificate Registrar,
in the Borough of Manhattan, The City of New York, accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder hereof or such holder's attorney duly
authorized in writing, and thereupon one or more new certificates of authorized
denominations evidencing the same aggregate interest in the Trust will be
issued to the designated transferee. The Certificates are issuable only as
registered Certificates without coupons in denominations of $1,000 and integral
multiples hereof. As provided in the Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of authorized denominations evidencing the same aggregate
denomination, as requested by the holder surrendering the same. No service
charge will be made for any such registration of transfer or exchange, but the
Trustee may require payment of a sum sufficient to cover any tax or
governmental charges payable in connection therewith.
The Trustee, the Certificate Registrar and any agent of the
Trustee or the Certificate Registrar may treat the person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither the
Trustee, the Certificate Registrar, nor any such agent shall be affected by any
notice to the contrary.
The obligations and responsibilities created by the Agreement
and the Trust created thereby shall terminate upon the payment to
Certificateholders of all amounts required to be paid to them pursuant to the
Agreement and the disposition of all property held as part of the Trust. The
Servicer may at its option purchase the corpus of the Trust at a price
specified in the Agreement, and such purchase of the Receivables and other
property of the Trust will effect early retirement of the Certificates;
however, such right of purchase is exercisable only as of the last day of a
Collection Period as of which the Pool Balance is equal to or less than 5% of
the Original Pool Balance.
B-4
86
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
(Please print or typewrite name and address, including postal
zip code, and taxpayer I.D. or Social Security Number of assignee)
the within certificate, and all rights thereunder, hereby irrevocably
constituting and appointing __________________________ Attorney to transfer
said Certificate on the books of the Certificate Registrar, with full power of
substitution in the premises.
Dated: *
Signature Guaranteed:
*
* NOTICE: The signature to this assignment must correspond with the name
as it appears upon the face of the within Certificate in every particular,
without alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member of the New York Stock Exchange or a commercial bank or
trust company.
X-0
00
XXXXXXX X-0: FORM OF RV CERTIFICATE
[Front]
NATIONSCREDIT GRANTOR TRUST 1997-2
NATIONSCREDIT GRANTOR TRUST 1997-2 ____% RV
RECEIVABLE-BACKED CERTIFICATE
evidencing a fractional undivided interest in the
Trust, as defined below, the property of which
includes a pool of retail installment sale contracts
secured by new and used recreational vehicles, and
sold or caused to be sold to the Trust by
NationsCredit Securitization Corporation.
(This Certificate does not represent an interest in
or obligation of NationsCredit Commercial Corporation
of America, NationsCredit Securitization Corporation
or any affiliate thereof, except to the extent
described below.)
NUMBER CUSIP
FINAL SCHEDULED DISTRIBUTION
DATE: $________________
THIS CERTIFIES THAT _________________is the registered owner
of a $________ dollars nonassessable, fully-paid, fractional undivided interest
in the NationsCredit Grantor Trust 1997-2 (the "Trust") formed by NationsCredit
Securitization Corporation, a Delaware corporation (the "Depositor"). The
Trust was created pursuant to a Pooling and Servicing Agreement, including the
Standard Terms and Conditions of Agreement incorporated by reference therein,
dated as of __________, 1997 (the "Agreement") among the Depositor,
NationsCredit Commercial Corporation of America, as Servicer, and Bankers Trust
Company, as Trustee (the "Trustee") and as Collateral Agent (the "Collateral
Agent"), a summary of certain of the pertinent provisions of which is set forth
below. To the extent not otherwise defined herein, the capitalized terms used
herein have the meanings assigned to them in the Agreement. This Certificate
is one of the duly authorized Certificates designated as "NationsCredit Grantor
Trust 1997-2 ____% Marine Receivable-Backed Certificates" (herein called the
"Certificates"). This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement, as amended from
time to time, the holder of this Certificate by virtue of the acceptance hereof
assents and by which such holder is bound. The property of the Trust includes
a pool of retail installment sale contracts (the "Receivables") secured by
B-6
88
recreational vehicles ("RVs"), all payments (other than late fees and certain
other amounts) received thereunder, in the case of Simple Interest Receivables,
and due thereunder, in the case of Precomputed Receivables after __________,
1997, the interest of the Depositor in the security interests in the RVs, such
amounts as may be held from time to time in certain trust accounts, the Surety
Bond, any property that shall have secured a Receivable and that shall have
been acquired by the Trustee, the Purchase Agreement, proceeds from claims on
physical damage, credit life and disability insurance policies covering RVs, or
the Obligors as the case may be, the interests of the Depositor in any proceeds
from recourse to Dealers on the Receivables, and the proceeds of all of the
foregoing.
Under the Agreement, there will be distributed on the 15th day
of each month or, if such 15th day is not a Business Day, the next Business Day
(the "Distribution Date"), commencing on June 16, 1997, to the person in whose
name this Certificate is registered at the close of business on the Business
Day prior to such Distribution Date (the "Record Date"), such
Certificateholder's fractional undivided interest in the Monthly Interest
Payment, any Carry-Over Monthly Interest, the Monthly Principal Payment and any
Carry-Over Monthly Principal, all as more specifically set forth in the
Agreement. On the Final Scheduled Distribution Date, each Certificateholder
shall be entitled to receive an amount equal to the Monthly Interest Payment
and an amount necessary to reduce the Certificate Balance to zero.
Distributions on this Certificate will be made by the Trustee
by check mailed to the Person entitled thereto without the presentation or
surrender of this Certificate or the making of any notation hereon. Except as
otherwise provided in the Agreement and notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Trustee
of the pendency of such distribution and only upon presentation and surrender
of this Certificate at the office or agency maintained for that purpose by the
Trustee in the Borough of Manhattan, The City of New York.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
[Unless this Certificate is presented by an authorized
representative of The Depository Trust Company to the Trustee or its agent for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of CEDE & CO. or such other name as requested by an
authorized representative of The Depository Trust Company and any payment is
made to CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof,
CEDE & CO., has an interest herein.]
Unless the certificate of authentication hereon shall have
been executed by an authorized officer of the Trustee, by manual or facsimile
signature, this Certificate shall not entitle the holder hereof to any benefit
under the Agreement or be valid for any purpose.
B-7
89
IN WITNESS WHEREOF, the Trustee on behalf of the Trust and not
in its individual capacity has caused this Certificate to be duly executed.
DATED: NATIONSCREDIT GRANTOR
TRUST 1997-2
By: BANKERS TRUST COMPANY,
as Trustee
By:
--------------------------
Name:
Title:
Authenticated:
BANKERS TRUST COMPANY,
as Trustee
By:
--------------------------
Name:
Title:
B-8
90
[Reverse]
The Certificates do not represent an obligation of, or an
interest in, the Depositor, the Servicer, the Trustee or any affiliate of any
of them. The Certificates are limited in right of payment as more specifically
set forth in the Agreement. A copy of the Agreement may be examined during
normal business hours at the principal office of the Depositor, and at such
other places, if any, designated by the Depositor, by any Certificateholder
upon request.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the rights of the Certificateholders under the
Agreement at any time by the Depositor and the Trustee with the consent of the
Surety Bond Issuer and without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies maintained by the Trustee in its
capacity as Certificate Registrar, or by any successor Certificate Registrar,
in the Borough of Manhattan, The City of New York, accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder hereof or such holder's attorney duly
authorized in writing, and thereupon one or more new certificates of authorized
denominations evidencing the same aggregate interest in the Trust will be
issued to the designated transferee. The Certificates are issuable only as
registered Certificates without coupons in denominations of $1,000 and integral
multiples hereof. As provided in the Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of authorized denominations evidencing the same aggregate
denomination, as requested by the holder surrendering the same. No service
charge will be made for any such registration of transfer or exchange, but the
Trustee may require payment of a sum sufficient to cover any tax or
governmental charges payable in connection therewith.
The Trustee, the Certificate Registrar and any agent of the
Trustee or the Certificate Registrar may treat the person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither the
Trustee, the Certificate Registrar, nor any such agent shall be affected by any
notice to the contrary.
The obligations and responsibilities created by the Agreement
and the Trust created thereby shall terminate upon the payment to
Certificateholders of all amounts required to be paid to them pursuant to the
Agreement and the disposition of all property held as part of the Trust. The
Servicer may at its option purchase the corpus of the Trust at a price
specified in the Agreement, and such purchase of the Receivables and other
property of the Trust will effect early retirement of the Certificates;
however, such right of purchase is exercisable only as of the last day of a
Collection Period as of which the Pool Balance is equal to or less than __% of
the Original Pool Balance.
B-9
91
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
(Please print or typewrite name and address, including postal
zip code, and taxpayer I.D. or Social Security Number of assignee)
the within certificate, and all rights thereunder, hereby irrevocably
constituting and appointing __________________________ Attorney to transfer
said Certificate on the books of the Certificate Registrar, with full power of
substitution in the premises.
Dated: *
Signature Guaranteed:
*
* NOTICE: The signature to this assignment must correspond with the name
as it appears upon the face of the within Certificate in every particular,
without alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member of the New York Stock Exchange or a commercial bank or
trust company.
B-10
92
EXHIBIT C - FORM OF DEPOSITORY AGREEMENT
C-1
93
EXHIBIT D-1
NATIONSCREDIT COMMERCIAL CORPORATION OF AMERICA
MONTHLY SERVICER REPORT
CURRENT DATE:
I. Monthly Marine Principal Payment:
(A) Principal received from Obligors:
(1) Total principal collected $ __________
(2) Percent relating to Unsold Contracts $ __________
(3) Principal owed to Trust $ __________
(B) Purchased Receivables $ __________
(C) Liquidation Proceeds $ __________
II. Principal to Investors:
(A) Principal Balance at beginning of month $ __________
(B) Marine Certificate Factor at beginning of month $ __________
(C) Principal Balance at end of month $ __________
(D) Monthly Marine Principal due investors $ __________
(E) Carry-Over Monthly Marine Principal $ __________
III. Monthly Marine Interest Payment:
(A) Principal Balance at beginning of month $ __________
(B) Pass-Through Rate % $ __________
(C) Monthly Marine Interest Payment $ __________
(D) Carry-Over Monthly Marine Interest $ __________
IV. Draw on Marine Reserve Account and Surety Bond:
(A) Total Marine Available Funds equals:
(1) Principal received from Obligors
(or Dealers and insurers on non-Defaulted
Marine Receivables), plus $ __________
(2) Interest received from Obligors, plus $ __________
(3) Cash received from Depositor/Servicer on
Purchased Receivables, plus $ __________
(5) Interest on Marine Collection Account $ __________
D-1
94
(6) Total Marine Available Funds $
==========
(B) Total Marine Distributions equal:
(1) Monthly Marine Interest Payment and any
carry-over Monthly Marine Interest Payment, plus $ __________
(2) Monthly Marine Servicing Fee and any carry-over
Monthly Marine Servicing Fee (if NationsCredit
Commercial is not the Servicer), plus $ __________
(3) Monthly Marine Principal Payment and any
carry-over Monthly Principal Payment $ __________
(4) Total Marine Distributions $
==========
(C) Total Surplus/(Deficiency) (IV(A)-IV(B)) $ __________
(D) Marine Reserve Account balance $ __________
(E) Marine Reserve Account withdrawal $ __________
(F) Surety Bond demand $ __________
V. Monthly Marine Servicing Fee and any carry-over Monthly Marine
Servicing Fee (if NationsCredit Commercial is the Servicer) $ __________
VI. Reconciliation of Marine Reserve Account:
(A) Beginning Marine Reserve Account balance $ __________
(B) Interest on Marine Reserve Account $ __________
(C) Amounts paid to Marine Reserve Account under
the Pooling and Servicing Agreement $ __________
(D) Marine Reserve Account withdrawal $ __________
(E) Marine Reserve Account prior to release of excess $ __________
(F) Required Marine Reserve Account balance:
(1) As percent of Principal Balance $ __________
(2) Minimum Marine Reserve Account balance $ __________
(3) Required amount $ __________
(G) Release of excess $ __________
(H) Ending Marine Reserve Account balance $ __________
VII. Delinquency/Charge-off Experience:
(A) Principal Balance at end of month $ __________
(B) Number of Units $ __________
(C) Delinquency $ #
30-59 Days $0.00 0
60-89 Days $0.00 0
90+ Days $0.00 0
TOTAL $0.00 0
X-0
00
(X) As % of EOM Outstanding
(E) Marine Receivables charged-off
during month $0.00 0
(F) Recoveries of Marine Receivables previously charged-off $ __________
(G) Net loss during month $ __________
(H) Annualized monthly net loss rate $ __________
X-0
00
XXXXXXX X-0
NATIONSCREDIT COMMERCIAL CORPORATION OF AMERICA
MONTHLY SERVICER REPORT
CURRENT DATE:
I. Monthly RV Principal Payment:
(A) Principal received from Obligors:
(1) Total principal collected $ __________
(2) Percent relating to Unsold Contracts $ __________
(3) Principal owed to Trust $ __________
(B) Purchased Receivables $ __________
(C) Liquidation Proceeds $ __________
II. Principal to Investors:
(A) Principal Balance at beginning of month $ __________
(B) RV Certificate Factor at beginning of month $ __________
(C) Principal Balance at end of month $ __________
(D) Monthly RV Principal due investors $ __________
(E) Carry-Over Monthly RV Principal $ __________
III. Monthly RV Interest Payment:
(A) Principal Balance at beginning of month $ __________
(B) Pass-Through Rate % $ __________
(C) Monthly RV Interest Payment $ __________
(D) Carry-Over Monthly RV Interest $ __________
IV. Draw on RV Reserve Account and Surety Bond:
(A) Total RV Available Funds equals:
(1) Principal received from Obligors
(or Dealers and insurers on non-Defaulted
RV Receivables), plus $ __________
(2) Interest received from Obligors, plus $ __________
(3) Cash received from Depositor/Servicer on
Purchased Receivables, plus $ __________
(4) Liquidation Proceeds, plus $ __________
(5) Interest on RV Collection Account $ __________
D-4
97
(6) Total RV Available Funds $
==========
(B) Total RV Distributions equal:
(1) Monthly RV Interest Payment and any
carry-over Monthly RV Interest Payment, plus $ __________
(2) Monthly RV Servicing Fee and any carry-over
Monthly RV Servicing Fee (if NationsCredit
Commercial is not the Servicer), plus $ __________
(3) Monthly RV Principal Payment and any
carry-over Monthly Principal Payment $ __________
(4) Total RV Distributions $
==========
(C) Total Surplus/(Deficiency) (IV(A)-IV(B)) $ __________
(D) RV Reserve Account balance $ __________
(E) RV Reserve Account withdrawal $ __________
(F) Surety Bond demand $ __________
V. Monthly RV Servicing Fee and any carry-over Monthly RV
Servicing Fee (if NationsCredit Commercial is the Servicer) $ __________
VI. Reconciliation of RV Reserve Account:
(A) Beginning RV Reserve Account balance $ __________
(B) Interest on RV Reserve Account $ __________
(C) Amounts paid to RV Reserve Account under
the Pooling and Servicing Agreement $ __________
(D) RV Reserve Account withdrawal $ __________
(E) RV Reserve Account prior to release of excess $ __________
(F) Required RV Reserve Account balance:
(1) As percent of Principal Balance $ __________
(2) Minimum RV Reserve Account balance $ __________
(3) Required amount $ __________
(G) Release of excess $ __________
(H) Ending RV Reserve Account balance $ __________
VII. Delinquency/Charge-off Experience:
(A) Principal Balance at end of month $ __________
(B) Number of Units $ __________
(C) Delinquency $ #
30-59 Days $0.00 0
60-89 Days $0.00 0
90+ Days $0.00 0
TOTAL $0.00 0
X-0
00
(X) As % of EOM Outstanding
(E) RV Receivables charged-off
during month $0.00 0
(F) Recoveries of RV Receivables previously charged-off $ __________
(G) Net loss during month $ __________
(H) Annualized monthly net loss rate $ __________
D-6
99
EXHIBIT E-1
NATIONSCREDIT COMMERCIAL CORPORATION OF AMERICA
MARINE CERTIFICATEHOLDER STATEMENT
A-C (Per $1,000 Initial Balance):
(A) The amount of the Marine Certificateholder's
distribution which constitutes the Monthly Marine
Principal Payment (including any Carry-
Over Monthly Marine Principal) . . . . . . . . . . . . . . . . . . . . . . $________
(B) The amount of the Marine Certificateholder's
distribution which constitutes the Monthly
Marine Interest Payment (including any Carry-
Over Monthly Marine Interest) . . . . . . . . . . . . . . . . . . . . . . $________
(C) The Marine Certificateholder's pro rata portion of
the Monthly Marine Servicing Fee (including any Carry-
Over Monthly Marine Servicing Fee) . . . . . . . . . . . . . . . . . . . . $________
(D) Marine Certificate Balance as of Record Date . . . . . . . . . . . . . . . $________
(E) Marine Certificate Factor as of Record Date . . . . . . . . . . . . . . . $________
X-0
000
XXXXXXX X-0
NATIONSCREDIT COMMERCIAL CORPORATION OF AMERICA
RV CERTIFICATEHOLDER STATEMENT
A-C (Per $1,000 Initial Balance):
(A) The amount of the RV Certificateholder's
distribution which constitutes the Monthly RV
Principal Payment (including any Carry-
Over Monthly RV Principal) . . . . . . . . . . . . . . . . . . . . . . . . $________
(B) The amount of the RV Certificateholder's
distribution which constitutes the Monthly
RV Interest Payment (including any Carry-
Over Monthly RV Interest) . . . . . . . . . . . . . . . . . . . . . . . . $________
(C) The RV Certificateholder's pro rata portion of
the Monthly RV Servicing Fee (including any Carry-
Over Monthly RV Servicing Fee) . . . . . . . . . . . . . . . . . . . . . . $________
(D) RV Certificate Balance as of Record Date . . . . . . . . . . . . . . . . . $________
(E) RV Certificate Factor as of Record Date . . . . . . . . . . . . . . . . . $________
E-2
101
EXHIBIT F-1
Trustee's Certificate
pursuant to Section 19.3 of
the Pooling and Servicing Agreement
Bankers Trust Company, as trustee (the "Trustee") of the
NationsCredit Grantor Trust 1997-2 created pursuant to the Pooling and
Servicing Agreement (including the Standard Terms and Conditions of Agreement
incorporated by reference therein, the "Agreement") dated as of __________,
1997, among NationsCredit Securitization Corporation, as Depositor (the
"Depositor"), NationsCredit Commercial Corporation of America, as Servicer, and
the Trustee, does hereby sell, transfer, assign and otherwise convey to the
Depositor, without recourse, representation or warranty, all the Trustee's
right, title and interest in and to all the Receivables (as defined in the
Agreement) identified in the attached Servicer's Certificate as "Purchased
Receivables," which are to be repurchased by the Depositor pursuant to Section
12.2 of the Agreement and all security and documents relating thereto.
IN WITNESS WHEREOF I have hereunto set my hand this
________day of 199_.
---------------------------------
Title:
F-1-1
102
EXHIBIT F-2
Trustee's Certificate
pursuant to Section 19.3 of
the Pooling and Servicing-Agreement
Bankers Trust Company, as trustee (the "Trustee") of the
NationsCredit Grantor Trust 1996-1 created pursuant to the Pooling and
Servicing Agreement (including the Standard Terms and Conditions of Agreement
incorporated by reference therein, the "Agreement") dated as of __________,
1997, among NationsCredit Securitization Corporation, as Depositor,
NationsCredit Commercial Corporation of America, as Servicer (the "Servicer"),
and the Trustee, does hereby sell, transfer, assign and otherwise convey to the
Servicer, without recourse, representation or warranty, all the Trustee's
right, title and interest in and to all the Receivables (as defined in the
Agreement) identified in the attached Servicer's Certificate as "Purchased
Receivables," which are to be purchased by the Servicer pursuant to Sections
13.7, Section 20.2 or 20.2A of the Agreement, and all security and documents
relating thereto.
IN WITNESS WHEREOF I have hereunto set my hand this
__________day of 19_.
---------------------------------
Title:
F-2-1
